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.

Criminal Code

[Irwin Cotler, Liberal, Mount Royal, QC]

Mr. Speaker, I would like to begin by once again thanking the member for Red Deer for the work he has done to bring the issue of the personation of peace officers to the attention of the House. As he and others have correctly pointed out, there have been a number of offences committed in recent years in which the offender personated an officer in order to facilitate illegal activity, and these instances have the profoundly troubling consequence of undermining public trust in the police and other officials.

I would also like to acknowledge the courageous appearance before the justice committee of Laurie Long and her daughter Jordan, whose 46-hour ordeal at the hands of a man who pretended to be a police officer evokes in all of us the utmost compassion and outrage. Jordan's determination to not only overcome this trauma but to speak openly about it in an effort both to encourage other victims to come forward and to prevent others from being victimized truly merits the term “heroic”.

Accordingly, I will be supporting Bill C-444 as a statement of the seriousness with which Parliament regards the crime of personation. I can support it because the member for Red Deer has wisely not included a mandatory minimum sentencing provision and, as such, this legislation would be unlikely to have the unintended negative consequences of other Conservative justice bills that have come before us.

However, at the same time the bill is unlikely to have the meaningful positive impact that we all desire, indeed, that which the member for Red Deer desires, mainly fewer instances of personation. The bill would establish that for offenders who personate a peace officer in order to facilitate another offence, this intention would be considered an aggravating factor with respect to the sentence for personation, yet, as I outlined at second reading, Canada already allows for longer sentences for personation than many comparable jurisdictions, and there has been no suggestion that Canadian judges have been ignoring material aggravating factors when meting them out.

Furthermore, even if some judges were moved by this legislation to issue longer sentences than they otherwise would have, the offenders would still be unlikely to spend more time in prison because the sentence for personation would generally be served concurrently with a longer sentence for the crime it was intended to facilitate. Indeed, while the member for Red Deer outlined at committee certain exceptional hypothetical scenarios in which his bill could conceivably impact the length of a prison term, these scenarios constitute exceptions that prove the rule, which is that the bill will have less of the impact than the member for Red Deer would himself wish on sentencing and prison terms.

Finally, even if this bill were in rare cases to cause certain offenders to spend more time in prison, it has been well established that longer prison terms do not result in less crime. As such, the goal of reducing the occurrence of personation would not be furthered in any event. As I suggested at second reading, preventive measures, such as restricting the availability of authentic looking police attire and equipment, would do more to protect Canadians than this somewhat less than consequential amendment on the matter of sentencing guidelines might do.

I know that the member for Red Deer explained at committee, and today, that his primary purpose in bringing this bill forward was not to increase the length of prison terms, or even to have a direct impact on the incidence of this offence, but rather to raise awareness about the crime of personation. This is a laudable objective, and in fact I have spent much of my own work seeking to raise awareness on various issues, including crimes committed both in Canada and abroad.

While I am on the topic, I will take this opportunity to extend my appreciation to those members from all parties who have participated in the context of Iran accountability week in efforts to raise awareness about the threat posed by the Iranian regime, both to other countries and particularly to its own people. Raising awareness can undoubtedly be an important first step on the road to tangible change.

However, the Criminal Code is an inappropriate tool with which to engage in an awareness campaign. For one thing, I am somewhat uneasy about the precedent of making additions to it that are primarily of a symbolic nature. The Criminal Code functions best when it is simple, efficient, clear and accessible to ordinary Canadians. Amendments to the Code are appropriate when it is determined that there is a fault or a gap in the law, but if we make a habit or a practice of amending it simply for the purpose of signalling concern, however valid a given concern might be— and, again, I applaud the member for Red Deer in his expression of concern—we risk unnecessarily complicating a document that is already dense and complex, not to mention risking unforeseen and undesired consequences in unforeseeable cases.

More importantly, perhaps, the Criminal Code is simply not an effective means of raising awareness. I appreciate that this bill has brought the matter of personation of peace officers to the attention of Parliament, although that goal could have been achieved just as well by way of a motion. However, surely we must seek not only to alert parliamentarians to this problem, but the Canadian public as well. To that end, adding an aggravating sentencing factor to the Criminal Code, especially one that is unlikely to have any real consequential effect, may achieve little, as very few Canadians are conversant in the sentencing guidelines of section 130.

Indeed, the government itself has acknowledged on several occasions that amending the Codes does not, on its own, raise awareness.

Last fall, for example, Parliament unanimously passed Bill C-36 which, similarly to the bill before us, added an aggravating sentencing factor, this one designed to increase penalties for those who target seniors.

At that time, the Parliamentary Secretary to the Minister of Justice stood in this House and said:

This government recognizes the concern expressed by witnesses...who noted that Bill C-36 could not serve as the only response to the problem of elder abuse.

He went on to explain that the bill was intended to complement an awareness and advertising campaign already in place.

Another example is Bill C-26, the citizen's arrest and self-defence act, which received royal assent on June 28 of last year. At committee, Catherine Kane, who was then director general and senior general counsel of the criminal law policy and amendments section in the Department of Justice, and I congratulate her on her appointment since to the Federal Court, referred to the government's plan for educating the public regarding the bill's provisions saying, “we will also be embarking on some public education materials so we can explain to various audiences what these changes mean”.

I regret that I have yet to see any such educational materials in the 11 months since the bill received royal assent. I might add, parenthetically, that while a backgrounder published by the Department of Justice in conjunction with the coming into force of the legislation on March 11 of this year speaks of two guides on the department's website, “What you need to know about making a citizen's arrest” and “Technical guide to self defence and defence of property reforms”, the links to both are broken.

Nevertheless, my point is that even the government has in word, if not always in deed, recognized that education and raising awareness should be conducted outside the Criminal Code. Regrettably, the bill before us does not do likewise. There has been no mention, for instance, of education programs to inform individuals about their right to ask a police officer for identification. Indeed, there has not even been any suggestion that the very change wrought by the bill will be publicized in any way.

Simply having this provision rest as one of many in the Criminal Code that most Canadians only encounter when they are either charged with a crime or fall victim to one does not constitute effective education or awareness-raising, and neither is it a strategy that will prevent, deter or dissuade anyone from engaging in what we all agree is reprehensible behaviour.

Fundamentally, the 2,074 pages of legal language in the Criminal Code are neither a billboard nor a public service announcement. Any attempt to use them as such, however well intentioned, cannot be expected to succeed.

As I said at the outset, I will support this bill so as to join with the member for Red Deer in seeking to make this statement on an important issue. Again, I commend the member for this initiative. However, if we are to protect Canadians from those who would abuse their trust by disguising themselves as peace officers in order to do harm, we must devise concrete measures that can be more effective at both raising awareness and preventing this intolerable crime.

[David Wilks, Conservative, Kootenay—Columbia, BC]

Thank you, Mr. Chair, and thank you, Minister, for being here today. I think that you and your department have done a great job over the years to ensure that we recognize victims of crime over those who are behind bars.

Having said that, on March 11, 2013, you announced that Bill C-26, , the Citizen's Arrest and Self-defence Act, had come into force. This was great news for all Canadians. At our committee we had heard from many witnesses who urged the swift passage of Bill C-26, and congratulate this government on its work to better victims' rights.

Could you please explain how this particular bill will enhance victims' rights in our country?

Transboundary Waters Protection Act

[Jamie Nicholls, NDP, Vaudreuil—Soulanges, QC]

Mr. Speaker, it is a pleasure to speak to the bill introduced by the hon. member for Bruce—Grey—Owen Sound. Our party intends to support this legislation, and I commend my colleague opposite for bringing it forward. However, I particularly want to thank all the activists in Canada who have been urging the government for several years to protect our most precious resource, namely our water.

Bill C-383 amends the International Boundary Waters Treaty Act to strengthen the prohibitions against bulk water removal and to improve current protections. It targets all boundary waters between Canada and the United States, the waters flowing from Canada into the United States, and the rivers flowing into the United States.

In my opinion, this is an important piece of legislation that would help protect our resources. As a member of the Standing Committee on Natural Resources, protecting Canada's waters is a major concern of mine. Therefore, I appreciate this opportunity to debate the bill, to stress its positive aspects, and to also discuss its limitations.

First, it is important to point out that the bill proposed by the member for Bruce—Grey—Owen Sound is quite similar to the legislation presented by the Conservative government in 2010. Indeed, a bill was introduced following promises made by the Conservatives in the 2008 and 2009 throne speeches to introduce legislation to ban bulk water transfers or exports from Canadian freshwater basins.

As hon. members know, the bill presented by the Conservatives was never passed because it never went beyond first reading stage. Of course, it was not a government priority. The reason I am discussing the similarities with the old legislation is not just to underline the Conservatives' inaction to this day, but also because one of the positive aspects of Bill C-383 is that it addresses a major flaw that existed in Bill C-26. Indeed, the latter did not protect Canadian waters from its most serious threat, that is transfers from a water basin that is neither a boundary nor transboundary water body from Canada into the United States.

As for Bill C-383, it proposes to amend the International River Improvements Act to prohibit the issuing of permits for projects that link non-boundary waters to an international river when the purpose of such projects is to increase the annual flow towards the United States. This is an important change that would prohibit the issuing of a permit to build, operate or maintain a canal or pipeline transporting Canadian water to an international river.

Like its predecessor, Bill C-383 has one major flaw: it does not prohibit all bulk water exports. That is why the NDP believes the legislation needs to go further. It must provide greater protection to this precious resource, water. We are hoping for legislation that provides for the protection of all surface water in Canada, the development of a plan coordinated with the provinces to implement the ban on bulk water removal, and the signing of binational agreements that would prevent the United States from acting unilaterally to import water.

Finally, the NDP especially wishes that the federal government will commit to addressing the threat posed by NAFTA to the sovereignty of Canada's water resources.

For those who may not know that, under NAFTA, Canadian water is both a service and an investment.

NAFTA defines water as a product. The definition of water as a good could weaken or invalidate provincial and federal legislation and regulations on the protection of our water.

In this regard, the Council of Canadians reminded us of the worrisome example of California's SunBelt Corporation. In 1990, SunBelt entered into an alliance with Canadian company Snowcap Waters to export bulk water from British Columbia to the United States.

On March 18, 1991, the Government of British Columbia imposed a moratorium on water exports. That moratorium was followed by the provincial government passing the Water Protection Act, which banned water exports for good.

After the British Columbia government passed this legislation, SunBelt filed a lawsuit against Canada under NAFTA provisions and demanded $10 billion in compensation.

At last report, the matter was still unresolved.

In order to deal with such threats, former NDP MP Bill Blaikie introduced, in 1999, an opposition motion that led to the moratorium on bulk water exports. The motion, which was adopted by the House, also tasked the government with introducing legislation to prohibit bulk freshwater exports and interbasin transfers. Furthermore, the motion stated that the federal government should not be a party to any international agreement that would compel Canada to export freshwater against its will.

The day after the motion was adopted, the Liberal government of the day announced a strategy to prohibit bulk water removal, including exports, in Canada's major basins. However, as was the case with many other grand Liberal announcements, the government did nothing tangible.

Needless to say, the NDP has not given up on its efforts to protect water. In June 2007, the NDP member for Burnaby—New Westminster moved a motion asking the government to initiate talks with the U.S. and Mexican governments to ensure that water is excluded from NAFTA. The motion was adopted by the House, but the government has not yet had serious discussions with these countries.

Always mindful of protecting Canadians' interests, the hon. member for Burnaby—New Westminster did not abandon the cause. In 2011, he tried again by once again introducing his motion calling for a national water strategy, Motion No. 5:

That, in the opinion of the House, the government should develop and present a comprehensive water policy based on public trust, which would specifically: (a) recognize that access to water is a fundamental right; (b) recognize the UN Economic and Social Council finding, in General Comment 15 on the International Covenant on Economic, Cultural, and Social Rights (2002), that access to clean water is a human right; (c) prohibit bulk water exports and implement strict restrictions on new diversions; (d) introduce legislation on national standards for safe, clean drinking water; (e) implement a national investment strategy to enable municipalities and aboriginal communities to upgrade desperately needed infrastructure without resorting to privatization through public-private partnerships; (f) oppose measures in international agreements that promote the privatization of water services; and (g) commit to ensure water does not become a tradable commodity in current and future trade deals.

I would like to commend the hon. member for Burnaby—New Westminster for showing the type of practical steps that must be taken. We must do what is necessary to make it law.

Message from the Senate

[The Speaker, Conservative, Andrew Scheer]

I have the honour to inform the House that when the House did attend His Excellency the Governor General in the Senate chamber, His Excellency was pleased to give, in Her Majesty's name, the royal assent to the following bills:

Bill C-26, An Act to amend the Criminal Code (citizen's arrest and the defences of property and persons)—Chapter 9, 2012.

Bill C-40, An Act for granting to Her Majesty certain sums of money for the federal public administration for the financial year ending March 31, 2013—Chapter 10, 2012.

Bill C-41, An Act for granting to Her Majesty certain sums of money for the federal public administration for the financial year ending March 31, 2013—Chapter 11, 2012.

Bill C-288, An Act respecting the National Flag of Canada—Chapter 12, 2012.

Bill C-278, An Act respecting a day to increase public awareness about epilepsy—Chapter 13, 2012.

Bill C-311, An Act to amend the Importation of Intoxicating Liquors Act (interprovincial importation of wine for personal use)—Chapter 14, 2012.

Bill C-310, An Act to amend the Criminal Code (trafficking in persons)—Chapter 15, 2012.

Bill C-25, An Act relating to pooled registered pension plans and making related amendments to other Acts—Chapter 16, 2012.

Bill C-31, An Act to amend the Immigration and Refugee Protection Act, the Balanced Refugee Reform Act, the Marine Transportation Security Act and the Department of Citizenship and Immigration Act—Chapter 17, 2012.

It being 2:15 p.m., the House stands adjourned until Monday, September 17, 2012, at 11 a.m., pursuant to Standing Orders 28(2) and 24(1).

Citizen's Arrest and Self-defence Act

[Linda Duncan, NDP, Edmonton Strathcona, AB]

Madam Speaker, I too am rising to speak to Bill C-26. The origin of the bill is the Lucky Moose case. A shopkeeper, believing that the same accused was continuing to shoplift in his shop and frustrated that he was not getting action in apprehending this person, chose to detain and essentially arrest and confine this person. The shop owner was arrested, charged and convicted. However, there was a lot of controversy around this case. It was appealed and the conviction was overturned. The court at the appeal level raised concerns with the current provisions in law specific to property protection. The court found the provisions inconsistent and meriting clarity.

I would like to congratulate the government and commend it for responding to the courts. It is a refreshing change. There have been a number of rulings by the courts where the government has snubbed the judiciary. One example is the case of the Wheat Board. In another example, in a series of cases, the Minister of the Environment has refused to exercise his authority properly to consider impacts to aboriginal peoples' lands and waters. I commend the government. It has listened to the courts and it is trying to move in the direction of improving the law.

This bill was triggered by the actions of my colleague, the member for Trinity—Spadina. Everyone in the House congratulates her in her initiative to bring forward a private member's bill in the last Parliament. The government is to be commended for responding to a private member's bill. One of the powers of all the members in this House is to bring forward activities in a private member's bill. Members may or may not have their bill go through the entire parliamentary process and have it accepted and adopted. However, by simply tabling a bill, members can signal to the government that this may be an action they want to pursue.

It is, however, important when we are making amendments to the Criminal Code that we avoid one-offs. There has been a propensity for one-offs by the current government, particularly in the area of public safety. Some members in the House have raised concerns as to whether the bill goes too far or not far enough and why the House has not accepted amendments brought forward by groups such as the Canadian Bar Association, representing our defence counsel, or the Elizabeth Fry Society. In some cases, the members of the committee and the House have considered these proposals for change. Some have been made and others not. We would hope that, if this law should pass and then go on to the Senate and pass and be law, the authorities that oversee this amendment to the Criminal Code, including the courts, the Canadian bar, defence counsel and prosecutors, parliamentarians and the committee, consider reviewing how this law is being applied in the field, whether it was a good idea to amend and whether it has gone far enough or should be reined in.

We sought amendments to improve the bill. We always try to take a proactive, constructive approach. Some of the amendments were accepted and some were not. I am advised we recommended a change to section 34 to additional criteria for consideration, whether the use of force was reasonable, to consider the state of mind or the circumstances perceived by the person, an example being the battered spouse syndrome. For example, if people have been continually battered they may perceive that they are going to be harmed seriously and react in a very serious way. That should be considered. Unfortunately, that amendment was not accepted.

I suggest that, while efforts have been made to clarify this law at the request of the courts and the public, it still remains highly subjective. As a lawyer, I always look to the law to see if we are providing clarity so people know what the law says and what their rights and obligations are, and so that the courts can make a fair ruling. One of the examples I would give is the proposal for amendment to subsection 494(3) regarding the use of force or detaining a person in the case of property being impacted, that the owners may arrest if they find the person is committing a criminal offence.

I would suggest that is a highly subjective matter. It may be very difficult for a shop owner or property owner to determine whether it is a simple trespass or whether it amounts to a criminal offence. These are the kinds of provisions that I think merit a closer look, and we will await what the determinations of the courts are.

The intent of the government is very sound. It wants to provide clarity around the reasonable actions that people can take to protect their persons or property, but, as we are hearing from members in the House, only so long as the intent is not to go in the direction that some laws have taken in the United States, those being the “stand your ground” and the “shoot first” laws. We have heard some concern in debate, particularly with respect to the use of force against others or as to what kind of action is reasonable when protecting one's property. Hopefully we are not going in the direction of “shoot first”.

It is very important that we put boundaries around citizen enforcement. Some entities, such as the police associations and in some cases the Canadian Bar Association, are raising concerns about greater citizen vigilantism and the potential for people to take the law into their own hands. I would suggest there is a need for training and guidance. Perhaps it could be provided through business associations, or perhaps police officers or members of the bench could come in and explain the boundaries of these provisions in cases where there have been repeat incidents of shopkeepers being robbed or attacked at gunpoint. A good example would be bank branches, where on some occasions, and certainly in my city, there have been repeat robberies at particular branches. That may be important.

When the government brings forward new laws, as a former environmental enforcer I like to encourage it to also table or bring forward new enforcement and compliance policies and strategies at the same time. If the public presumes that the law gives them greater powers to arrest and detain or perhaps use greater force when they feel they are being assaulted or their property is being impacted, we need to provide some guidance. Perhaps the committee could review this and make some recommendations to police forces and community associations.

I would like to commend my own city, Edmonton, for implementing a new program called REACH Edmonton. It recognizes that the police cannot be everywhere. There have been pleas from every municipality and from smaller centres across the country for more money from the federal government for policing. In the interim, because of this change in the law there may be more interventions involving people taking matters into their own hands.

It is very important that we stand back and assess who are committing these kinds of offences. If there are property offences or shoplifting, why these offenses occurring?

In my own riding, we have a number of centres struggling to get the funding to get kids who have been abandoned by their families off the street and give them a safe place to stay and a hot meal so that they do not shoplift, break and enter, and so forth. It is very important that our government give equal consideration to a strategy for public safety to prevent these kinds of circumstances, not just to after-the-fact actions. Therefore, I would encourage the Government of Canada to observe the new programs of the City of Edmonton and give due consideration to also providing assistance for the implementation of community crime prevention programs.

[André Bellavance, Bloc, Richmond—Arthabaska, QC]

Madam Speaker, I would like to thank my colleague for her question and comment.

In fact, the Bloc Québécois would not support this kind of bill if the aim were to have people become vigilantes and start running around the streets with weapons to arrest thieves. That is obviously not the case. This was necessary to remedy a flaw that became particularly apparent in 2009.

As I said, I had not heard about a lot of cases. This is not a bill that would necessarily have been brought forward if charges had not been laid against an honest store owner who decided to make an arrest himself. Fortunately, it went well. He arrested the person who had come back an hour later after already committing a theft in his store; he tied him up and he called the police. He did his job. But charges were laid against the store owner, and that is what was unjust.

Bill C-26 simply clarifies the reasonable time a person has for arresting someone. The fact that it happened an hour earlier does not mean that a person has to let a thief who has the gall to come back to their business get away with it. You do not know what they are going to do; you have reason to believe they are going to keep stealing or committing more serious crimes; and you do not know whether they are armed or not.

Therefore it was not proper to lay charges against that store owner, but that is what happened. By clarifying the situation, we will ensure that in future, charges will not be laid against people who are fully entitled to defend their property and their person.

[André Bellavance, Bloc, Richmond—Arthabaska, QC]

Madam Speaker, I am pleased to rise on Bill C–26. This is a rare event. For once, the Conservative Minister of Justice has introduced a balanced bill that is realistic and even includes a number of recommendations from the opposition parties. For once, we can be glad to have a bill before us that will probably receive unanimous support. The Bloc Québécois intends to support this bill.

The problem with the current legislation was also identified. Everyone gave the example of what occurred in 2009, in Toronto, when Mr. Chen, a store owner, arrested someone who had stolen from him. It became apparent that the law was problematic when charges were laid against the store owner.

In my opinion, what happened to Mr. Chen is not a frequent problem, but the situation really upset a lot of people, and with good reason. It was important to amend the legislation so that what happened to this store owner would not happen again.

The law already gives people the right to defend themselves and even to arrest somebody they catch committing an offence on or in relation to their property. Bill C-26 allows such arrests to be made within a reasonable time after the offence and even to extend this period of time. That is a big difference. In the case we have been talking about since the beginning of the debate, Mr. Chen made an arrest one hour after the offence had been committed. He noticed the thief when he came back to his shop one hour later. That takes the cake. A person would have to have some nerve. It makes perfect sense that the shop owner decided to catch and tie up the thief and call the police. He did what needed to be done.

Nevertheless, we have to ensure that we do not become a wild west society when it comes to protecting our property. That must always be considered, first and foremost, the job of police officers. It is possible to defend oneself and even to make an arrest without being charged as Mr. Chen was. The bill will correct this situation.

Fortunately, even though charges were laid against Mr. Chen, the judge did his job properly by finding that there were no grounds to charge him with anything. It could therefore be said that justice was done and that the individual was ultimately not charged with making an arbitrary arrest or breaking the law, even though the arrest was made one hour after the crime was committed.

The matter did not finish there, and that is a good thing. It was raised not only by the government, but also by the opposition parties, which introduced bills, made recommendations and acted to ensure the situation did not happen again. In my opinion, Bill C-26 corrects the injustice—and it can be called that—that occurred when charges were laid against a person who was ultimately only defending his property.

The right of self-defence is important, but we should not become vigilantes, and our streets should not become the wild west. By clarifying the law, we are solving a problem that perhaps did not arise frequently, although once is undoubtedly once too often. We are therefore in favour of this bill, although some questions still remain about the actual enforcement of the new provisions of the bill, particularly those respecting the time that may elapse between when the crime is committed and when citizens arrest the offender.

It is normal to allow citizens to protect themselves and their property, if they act in a reasonable manner without using excessive force. Ultimately, this is all a matter of self-defence. Far from promoting a society in which every individual takes justice into his own hands, the Bloc Québécois advocates a measured approach whereby citizens are entitled to defend themselves but are of course encouraged to call upon the police to protect them and to arrest criminals. We do not believe Bill C-26 runs counter to that principle.

As I said earlier, intervening or making an arrest ourselves must be a last resort, because our physical safety and that of those close to us may also be compromised if we decide to take justice into our own hands.

However, there are circumstances in which we have no choice and must absolutely ensure that the person who is attacking our family or our property is stopped. I do not always want to talk about things that happened to me, but when I was younger, three individuals broke into my parents' home. I was alone with my young girlfriend at the time—I believe we have all done that. I say young girlfriend, but I was young too. I was very much afraid at the time, not just for my physical safety, but for that of the person who was with me that evening.

I had a vague feeling that there was more than one person in the house because I could hear them walking and talking. I knew that alone, without a weapon of any sort, there could be a problem. Outnumbered, I could possibly lose a fight, if it came to that. Gripped with fear, I decided to take action. I did not necessarily intend to show myself, to try to confront these people, but I wanted at least to let them know that someone was home, that I was armed and that I would deal with them if they did not get out. I was not armed, but they did not take a chance and they ran away. That was how I handled the situation.

However, what would have happened if these people had looked all around the house? If I had remained silent, they would have ended up in my bedroom. Whether we like it or not, we are all afraid that the people who are with us will be attacked by these individuals. I could have become much more violent and I would have done anything to defend the person who was with me. It is quite normal to react that way. At the time, I also did not have access to a telephone; I could not call the police. I do not know if cell phones existed back then; in any case I did not have one at the time. I was a teenager. It obviously all depends on how you look at it and on the circumstances.

In that sense, there is nothing to suggest that the current legislation was applied inappropriately, as I was saying. Other than Mr. Chen's case, very few cases have been brought to our attention where self-defence came as a delayed reaction. The legislation advocated proceeding with an arrest or an intervention if the perpetrator is caught red-handed. In Mr. Chen's case we know that he reacted an hour later, but what about people who see the same thief who stole from them 24 hours later? I think the justice system needs to find a balance between what is reasonable and what is not, when it comes to how much time passes after the offence.

Let us not forget the case being used to justify this measure, namely that of the Toronto store owner who arrested a thief and then was charged with assault and forcible confinement. The store owner was acquitted, as I was saying earlier. The judge did his job. Nonetheless, Bill C-26 clarifies this situation.

I will not list all the changes in Bill C-26, but there are some important ones that we need to talk about here in this House. The bill completely changes the part of the Criminal Code on self-defence and protection of property. In fact, the bill amends sections 34 to 42 of the Code. Those sections are being replaced by what may be called a simpler system. That is not a bad thing. The bill also significantly amends the right of property owners to make a citizen's arrest under section 494 of the Criminal Code.

It seems to me that Bill C-26 no longer separates the various self-defence clauses according to the attitude of the person invoking self-defence, namely whether that person provoked the attack or whether it is a question of an attack against the person citing self-defence or a person under his or her responsibility. Everything has been combined under one section—section 34—which lays down a general rule that reads:

A person is not guilty of an offence if

a) they believe on reasonable grounds that force is being used against them or another person or that a threat of force is being made against them or another person;

b) the act that constitutes the offence is committed for the purpose of defending or protecting themselves or the other person from that use or threat of force; and

c) the act committed is reasonable in the circumstances.

It was important to clarify this measure. These changes were and are adequate. That is why the Bloc Québécois will support Bill C-26.

[Judy Sgro, Liberal, York West, ON]

Madam Speaker, I am pleased to have an opportunity to speak to Bill C-26 on citizen's arrest, an issue in which a lot of us have an interest.

Most of us in the House are familiar with an Ontario man by the name of David Chen. Mr. Chen is a Toronto shopkeeper who faced criminal charges after he subdued and held a shoplifter at his store in 2009. Mr. Chen held a repeat shoplifter after the man stole some plants and then had the nerve to return to the store. This defensive action caused Mr. Chen, unfortunately, to be charged with assault and forcible confinement.

There is a lot of confusion on this issue, which is why I welcome the opportunity to try to clarify it and remove the ambiguity.

While Mr. Chen was eventually acquitted of all criminal charges in this matter, the nature of this case shocked many Canadians. Canadians had a hard time believing that defending one's property could potentially be criminal.

Worse yet, while the notion of a citizen's arrest had been a common law tradition for several decades, this case raised serious concern among police and legal experts. Bill C-26 is the government's response to that surprise and concern.

I accept and believe that Canada's self-defence laws are complex and antiquated and clearly need to be brought into the 21st century. The Chen case has highlighted this fact for many of us. It is time for Parliament to remedy any ambiguity.

Bill C-26 would provide much greater clarity to prosecutors, judges and juries, as well as to private citizens who find themselves in a similar situation as Mr. Chen.

However, I am concerned with comments made by Eric Gottardi, the vice-chair of the Canadian Bar Association's National Criminal Justice Section, in reference to some of those who may use the provisions of this legislation. While referencing non-professional security personnel, Mr. Gottardi said, “Such personnel often lack the necessary range of equipment or adequate training to safely and lawfully make arrests in a manner proportionate to the circumstances”. The proportionality of the response is a key point.

These warnings need to be addressed along with Bill C-26.

For the sake of clarity, it is my intention and my party's intention to support the legislation but I continue to have concerns about the scope of the self-defence provisions of the bill.

Tom Stamatakis, president of the Canadian Police Association, also has concerns about the bill. He indicated that Canadians should leave law enforcement to the professionals. Specifically, he warned, “We should take care that any changes made within this legislation do not have the unintended consequence of broadening the current mandate of private security”.

We need to ensure that political considerations do not override our primary responsibility here in the House of Commons, that being the enactment of responsible and sound laws. One could question whether some of the crime legislation and so on that has been passed through the House was really sound and responsible.

On the matter of the property provisions, the right balance has been struck.

I will tell members the reasons for some of my concerns.

I represent a riding that is inviting, friendly and ethnically diverse. York West is a place that is home to countless different cultures and traditions and I can say, without hesitation, that I believe it is the best riding in Canada. Despite this, like many places struggling with certain negative employment, education and economic factors, combatting crime is a challenge at times. Recently, the local media has reported some criminal occurrences within the neighbourhood, something that has put many of our community members on edge. This heightens people's awareness and edginess and it becomes a concern for some.

A citizen's arrest should never be made without careful consideration of certain factors. First, personal safety and the safety of others should be paramount in these discussions. Second, is reporting the matter to police for its response a better option? Third, is an actual crime occurring and has the suspect been correctly identified? Failure to look at those three factors could lead us down a path that could have very dangerous consequences for many people, including the overall community.

I want to talk a bit about a law that is in force the U.S., in particular, in Florida. It is the “stand your ground” law. We are all quite familiar with the tragic Florida case where Trayvon Martin was shot at close range by an individual named George Zimmerman.

I am not passing judgment with respect to guilt or innocence. Either way, the loss of any young life is tragic. However, it also quite possibly can ruin the life of Mr. Zimmerman as well.

Mr. Zimmerman is a 28-year-old, armed, neighbourhood watch volunteer. It is totally legal in the U.S., especially in Florida. He has admitted to pulling the trigger and killing the 17-year-old inside a gated community.

For those who have not followed the story, this was a young man who was going to visit his father. He was carrying a bag of Skittles, some sort of candy, and was talking on the phone with his girlfriend. He was unarmed, a good student and a young man whose parents were very proud of, not someone who was into crime and all the rest of it. He was wearing a hoodie. That right away alarmed the individual.

Therefore, guilt or innocence aside, I believe this entire matter is a consequence of an emboldened volunteer, with inadequate training, acting as though he was a law enforcement professional. Again, a proportionate response was not present. He was told to turn around and leave, that police officers were on their way. However, he thought he could do far more than what he should have done. Now his life has been ruined. There is also the loss of the life of a young 17-year-old.

My point is that tough on crime means to be smart on crime. The two of them have to go together.

Protecting one's home or business is important, but it has to be tempered with responsible action. The proportionality of any response to criminal behaviour is essential. We do not need any more instances like the Trayvon Martin case because too many young lives are already lost to crime.

Police officers are there and that is their job to protect us. Not everyone can or should be a police officer. Police officers are psychologically tested and professionally trained on how to best protect and preserve life and property. They should always be the first call in any case of a suspected crime.

Laws should give citizens the option to act in the most extreme of circumstances. I am hopeful that Bill C-26 will strike that balance.

I recall a few years ago, when I was a city councillor, one of my constituents heard someone breaking into his house. He was a hunter and had a rifle. He got the rifle and shot the intruder. The intruder was not seriously injured but, in the meantime, my constituent was charged, much as Mr. Chen was. He was defending his own property. As in the case of Mr. Chen, my constituent was charged and had to go through a court process, which then was dismissed. However, that cost him a lot of money, a lot of aggravation and left him very fearful of some of the things that were ongoing.

Bill C-26 tries to remove the ambiguity, but we must move very cautiously as we move forward on these issues. Therefore, we will support Bill C-26.

[Guy Caron, NDP, Rimouski-Neigette—Témiscouata—Les Basques, QC]

Madam Speaker, I am pleased to rise in this House to speak to Bill C-26. A number of my colleagues who have spoken thus far have raised interesting points. I will not be using my time to repeat what has already been said, even though they are important points. However, there are some things that should be highlighted. I mentioned a few in the questions that I was able to ask this morning about this bill.

One of the important aspects of this bill is that it renews or updates some elements of an older law that does not necessarily reflect today's realities. I am referring to the provisions on self-defence, which need to be updated. This bill accomplishes that.

Concerns have been raised and, in my opinion, they are legitimate. When laws are created or amended, we sometimes venture into unknown territory. However, I am generally very satisfied with the committee's work on the proposed amendments. Naturally, we would have liked to have achieved some of the amendments that we, the official opposition, had proposed and that were highlighted earlier by my colleague from British Columbia.

However, in its current form, the bill addresses some of our concerns that were first raised by the member for Trinity—Spadina pertaining to a very specific situation. My neighbour from the riding of Montmagny—L'Islet—Kamouraska—Rivière-du-Loup also mentioned the case of David Chen.

However, there are other cases that illustrate the need to protect the people who defend themselves and defend their property. I will not rehash Mr. Chen's case, but there was another specific case that caught my attention and also upset me, quite frankly. In a rural region of Ontario, last August, a man woke up in his house to find three masked men outside who were starting to throw Molotov cocktails at his house. The individual grabbed a firearm and fired off two or three shots in order to protect himself—we all agree that a Molotov cocktail is an extremely dangerous weapon for the property and also for the individual. The police arrived and charged the individual with possession and use of a dangerous firearm.

Again we have a situation where the law does not protect individuals like Mr. Chen or this person from rural Ontario, when they want to protect themselves or protect their property.

The issue of whether the use of force is proportional to the offence is important. I think this bill addresses that quite well. Clearly, if a person commits an offence against property, such as shoplifting at a convenience store, then deadly force is not appropriate. The bill as worded does not propose that. In fact, it is a fine and properly worded bill.

In my opinion, the proportional force aspect is central to the proposed changes here. It makes the bill well balanced. According to the text of the bill, “the nature and proportionality of the person’s response to the use or threat of force” is a factor in determining reasonableness. Thus, deadly force cannot be used to protect property.

There is another point I also raised in my questions, and I would like to come back to that point in my presentation. The current version of the bill does not give greater powers to what are known as vigilantes, that is, groups of people who create watch committees to protect their territory. That is not the case. That is not what this bill proposes, which is good, because we know that this can ultimately lead to abuse.

Furthermore, it is important to point out that the bill allows individuals to protect themselves and their property and allows other authorized, delegated people to also do so. Thus, one cannot witness an offence involving someone else and take action as a result. That is what watch groups or vigilantes would be doing.

It is important that we have a bill like this one in order to clarify the situation of security guards in big box stores, for instance.

The way things are going, and as demonstrated by the fact that Mr. Chen was charged in the first place—although the charges were dropped—as was that person in Ontario, it seems that security guards in big box stores can, in their role, detain people who have shoplifted, for instance.

For example, someone who shoplifts and is caught by a security guard is usually taken to an office in the back of the store until the police arrive. This is a form of citizen's arrest. The security guard has the legal authorization, conferred by the store, to carry out this kind of surveillance and arrest. Thus, there is no abuse happening here.

However, if we went by what happened to Mr. Chen and that other person in Ontario, the legal vacuum that existed at the time could have meant that a security guard who was simply doing his job could have been arrested for kidnapping.

Thus, it was important that the House examine this issue in order to prevent such abuses from being committed simply because that is how the legislation is currently written, since frankly, that would be illogical. It is the duty of this House to propose these kinds of amendments.

I think any objections have been noted. Clearly, we would have liked to see the bill go a little further.

The NDP proposed nine amendments. Seven were rejected and two were accepted. As my colleague said—I think it is worth repeating—we really wanted to see the subjective element in the bill to ensure that the courts can take all of the circumstances surrounding an incident into account.

Of course, the cases members have been mentioning often involve theft, property offences or threats, such as when an individual seeks to harm someone by throwing Molotov cocktails. There are also specific situations that I feel fall into a grey area, such as spousal abuse cases where one spouse has to resort to violence to escape. For cases like these, the courts have to take the history of the relationship and everything that happened into account.

That is why the NDP, at the request of certain groups, proposed the amendment that was rejected.

However, the NDP also proposed another amendment that was accepted. It was one of two that were accepted. The courts will have to take into account the relevant circumstances of the person, the other parties and the act. That definition will be integrated into the bill. We are pleased with that. It does not go quite as far as incorporating the subjective element and is not quite as broad as that would have been, but it is still a commendable and welcome improvement.

The Canadian Bar Association and the Canadian Association of Elizabeth Fry Societies recommended including a subjective element. Even though the NDP is not completely satisfied with the amendment, it is a good first step toward better protection from abuse and domestic violence.

In that sense, we are satisfied with the bill in general. I am very happy to see that there is widespread agreement among members of the House to support this bill. The NDP will support it, too, and we will gladly vote in favour of the bill at third reading.

With regard to the hon. member for Saanich—Gulf Islands' concerns, they are clearly understood, and I think that they have been well received by the House. Amendments likely should be made. As with any bill, situations will result where we will eventually be able to see whether there are aspects missing in the application of the legislation or whether certain aspects go too far. That is why we are here in this House. We will have the opportunity to address the issues, make changes and propose additional amendments that will put a stop to any problems that may arise.

I am very pleased to support this bill. I would like to reassure people by telling them that the bill does not go too far and that it does not allow groups to take justice into their own hands, which often leads to abuse, as demonstrated by the case that is currently making the headlines in Florida, in the United States. Since this is a well structured bill, we will be happy to vote in favour of it, and we are pleased to see that there is a strong consensus in the House.

[François Lapointe, NDP, Montmagny—L'Islet—Kamouraska—Rivière-du-Loup, QC]

Madam Speaker, I am pleased to rise in the House today to comment on Bill C-26 which is, at the end of the day, a societal debate among all members of the House.

We are all attempting, collectively, to create civilized societies, but we have all had very chaotic experiences. Even though we have been tremendously successful on some levels, and even though crime rates are much lower than they were a hundred years ago or in the Middle Ages, our relationship with sometimes aggressive and violent situations is still difficult.

The bill specifically deals with this grey area. Unfortunately, some people have violent habits. What must be done about these behaviours?

The NDP intends to support Bill C-26 because it contains a lot of similarities to the bill introduced by my colleague from Trinity—Spadina. Throughout my speech, I am going to focus on the very well-known case of Mr. Chen, who owned a grocery store with his family. This case is what got my colleague from Trinity–Spadina interested in the issue. David Chen was accused of unlawful confinement, kidnapping and assault after having tied up a person who was stealing from his shop. It was not the first time the thief had stolen from his shop.

Mr. Chen tied the person up, he did not beat him, and he certainly did not beat him to death. There are some key words in this situation: he tied somebody up and was dealing with a repeat offender. This situation applies perfectly to the questions being asked today. It is not a simple situation. Somebody tied up, but did not beat up, a repeat offender. It is not a situation involving two people where a shop owner is suddenly threatened by somebody with a machete and has to act. There were a lot of shades of grey. We all understand why our colleague asked at the time that the law help simplify complicated situations, in other words simplify the outcomes for people facing complicated situations involving self-defence.

These very difficult concepts require a lot of distinctions and proper context. Here is a simple example. No one here would want a teenager who stole two cans of Pepsi to be beaten with a baseball bat. However, that is the kind of message, which we do not want to see acted upon, that this bill might send to a small segment of the population. We constantly see concepts such as “reasonable” in the bill. I did a count, and the word “reasonable” came up some 30 times, just in the amendments to the act recommended by Bill C-26. Here again, such terms must always be nuanced.

There are difficult concepts here, such as self-defence. There has to be a clear definition of what it is, when it applies and the line beyond which an action no longer constitutes self-defence. Here again, we are in a grey area.

The question is whether an assault is provoked or unprovoked. At what point does an assault become significant enough for a shop owner’s reaction to the attack to be considered provoked? Here again, the distinction is very important.

Several NDP members have advocated an amendment on subjective perception. For example, they talked about battered wife syndrome. That is a term that I do not really like but the understanding is that, even if the assault was perhaps not that “serious”, an energetic reaction might be understood, justified and not be penalized if it came in response to numerous assaults.

Consider the assault on Mr. Chen, the owner, in this context. Say, for example, that I own a business and am assaulted, but not seriously, by a single individual who is lightly armed or totally unarmed, but that my children are in the aisles of my grocery store.

My reaction might possibly be different because I would not simply be protecting myself from someone who is threatening me with a jackknife in order to commit a minor offence. In fact, he would not really be threatening me because I would be relatively well protected behind my counter. And I would know that my children are in the store, since they are in the aisles. So the issue would be this area of perception in which it would be possible for an individual to react more strongly in a context such as that. You have to consider the perception of the situation perceived by the assaulted individual before he reacted.

This places us under an obligation to demand that this government, which has an annoying tendency to avoid giving the committee the necessary time to consider potential amendments, submit to the democratic process in this case and allow the committee to consider all these issues, because they involve a lot of subtle distinctions.

This will prevent us from abandoning a principle as important as our responsibility to ensure public safety. When I analyze all this, I conclude that there is another threat that may weigh on us: that we may abandon our collective responsibility for public safety. The message must not be that we should take justice into our own hands. We must absolutely not get to that point.

Why? Two fundamental reasons seem obvious to me. No one wants to relive the wild west of 1875. It makes no sense. We have become much more civilized since that time. Furthermore, even to people who support taking a tough stance on crime, vigilante justice is fundamentally and systematically unfair.

Let us imagine that my family and I own a store and, tomorrow morning, a teenager or someone panics and steals a box of cereal and threatens me with his fists. Now, if I were behind the counter—and I weigh 225 pounds—I could take the law into my own hands. However, suppose it was my 76-year-old mother behind the counter, with her poor eyesight and bad knees. We would both have the same rights as citizens. We would have the same opportunity to defend ourselves, but no one could claim that the two situations are equal.

We must, therefore, never get to that point. We must maintain the simple notion that our civic duty is to ensure that the panic button under the counter is in working order. That is our only civic duty. If this bill leads us to move away from that goal, collectively, we have a serious problem. People need to be able to ask for help and they need to get the help they need from police forces within a reasonable time frame. That is one aspect that worries me and that relates to the potential consequences of such a bill. Are we collectively abandoning what should be the only goal of civil defence? If it were my mother behind the counter in that situation, unable to defend herself and certainly unable to defend herself the same way I could—or the same way as my colleague who has been practising karate for 25 years—she would deserve the same protection. That should be our collective goal in this House. We must not hide behind principles that would take us back to the wild west.

So I repeat my request that there be no form of closure when the committee examines these issues. Let us allow the committee to work on every nuance in this bill. That is what will ensure an excellent bill, one that can make things easier for people like Mr. Chen in situations like the one he faced at his store.

I would like to make another argument in support of my request to let the committee do its work. There is no need to panic. Yes, under the existing laws, Mr. Chen went through six months of complications from the time he had to defend himself to the time when he and the people working with him were acquitted. Let us hope that this bill will prevent people involved in similar incidents from enduring six months of complications. In the end, they were acquitted.

It is not as though there are hundreds of Canadians coping with great injustice because they acted reasonably in defending their property and businesses. There is no need to panic. I hope that the government will not behave as it did in connection with other public safety bills and tell us that if we question this bill, we must be on the side of thieves and shoplifters.

We will support this bill, but please give the committee members time to study all of the ethical and moral nuances of this bill.

[Elizabeth May, Green, Saanich—Gulf Islands, BC]

Madam Speaker, as we approach Bill C-26, a lot of members of Parliament are mindful of the notion that hard cases can make bad law. There is the specific case of David Chen and the Lucky Moose. We would have wished that the police on the scene had exercised some common sense and discretion by not prosecuting the individual. Now we have a law where a lot of us are concerned that there could be an increase in injuries, and even deaths, from people trying to take the law into their own hands, feeling empowered by what the House is doing with Bill C-26.

Since I am the only person planning to vote against this legislation, its passage is a certain thing. I ask my friend whether he thinks there is any way the House can send a message to Canadians that they should avoid taking the law into their own hands.

[Sean Casey, Liberal, Charlottetown, PE]

Madam Speaker, I am pleased to have the opportunity to speak to Bill C-26.

This particular piece of legislation would amend the Criminal Code to allow an individual 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.

As well, the bill attempts to clarify in law the self-defence provisions. I have some concerns with respect to these and will elaborate on them momentarily. However, I do want to say from the outset that the Liberal Party will support this bill, although we do have concerns about certain aspects of it.

Currently the Criminal Code allows Canadians the right to claim self-defence in the event they are assaulted without provocation. The Criminal Code also allows for Canadians to rely on the defence to property provisions in certain circumstances, so there is a Criminal Code defence of self-defence and defence of property. There is also a common law defence for each of them as well.

The point I wish to make is that we are not dealing with a legislative vacuum. There are laws with respect to self-defence and defence of property, both codified and under the common law. It is true that some aspects of the Criminal Code in this regard are outdated and in need of modernization. Indeed, the provisions of the Criminal Code with respect to defence of property span five sections and with respect to self-defence span four sections, sections 34 to 37 of the Criminal Code.

While Liberals support the bill, I do wish to raise again what has already been articulated by the hon. member for Mount Royal, a couple of areas of the bill, and there are more.

Two areas will be the focus of my remarks. The first concern relates to the property defence provisions of the bill. I have some concerns with respect to the consequences of their new breadth. They have been expanded and there are, understandably, consequences associated with that expansion.

In particular, it is clause 3 of the bill that is the operative clause here. I would like for those Canadians watching and those who are unaware of the contents of clause 3 to quickly read into the record exactly what it says. Clause 3 of this bill amends subsection 494(2) of the Criminal Code with the following:

(2) The owner or a person in lawful possession of property, or a person authorized by the owner...

—“authorized by the owner” is important wording, for reasons that I will come back to—

...or a person in lawful possession of property, may arrest a person without a warrant if they find them committing a criminal offence or in relation to that property and

(a) they make the arrest at that time; or

(b) they make that arrest...

—and these are the key words in this section—

within a reasonable time after the offence is committed and they believe on reasonable grounds that it is not feasible in the circumstances for a peace officer to make the arrest.

One of my concerns with respect to this section relates to private security agents. As I indicated, this section allows for persons “authorized by the owner” to make an arrest “within a reasonable time after” the commission of an offence.

We are all aware of private security firms and private security officers. We see them at hockey games. They are often out in full force on the weekends, watching over a particular business or providing security in a mall.

The amendments contemplated in this bill prescribe new powers to private security agents and in some cases provide them with powers incongruent with their training and experience as private security agents. It needs to be borne in mind that private security officers are accountable to the property owners, accountable to their employers, as opposed to the accountability that peace officers have to their code of conduct.

We know that peace officers, or police officers, are duly authorized individuals who we entrust to enforce the Criminal Code and other statutes in this country. They exercise considerable power only after a process of extensive training. Peace officers in this country are well trained in police tactics, arrest procedures and the Criminal Code. More importantly among the list of requirements, these individuals are properly vetted for temperament and balance. After that training, we entrust these individuals with a gun.

All that is well and good in this country. We need our police to protect us. I am concerned that this particular clause of the bill may lead to serious difficulties, including vigilantism. Allow me to provide what is now a very well known example.

We are all very well aware of the situation in Florida recently where an individual acting as a neighbourhood watch person now stands accused of committing second degree murder. He is up on charges because, as we understand it, he is being accused of using excessive force. The facts in this matter are now very well publicized. A young man is now dead as a result of another individual who, while functioning as a neighbourhood watch person and in possession of a weapon, acted in what he claims was a lawful manner because he was defending property.

I share this example only to point out that when laws are enacted in which we provide individuals the right under the Criminal Code to act in the protection of their property or of their person, or act in the stead or at the behest of another in an employee-employer relationship, we must be very careful. I have no doubt there will be a time when we will face a situation perhaps not unlike what we have seen in Florida.

Therefore I am concerned about this particular provision in the bill, and I hope the government might take another look at it as it proceeds to the Senate for legislative scrutiny. Certainly allowing for a piece of prime legislation to be amended at the Senate is not without precedent, even in this particular session of the House.

Another source of concern for me can be found in proposed section 34. This section does not deal with defence of property, but with self-defence. Again, for the record and for those who are not in possession of the bill, proposed subsection 34(1) states that a person is not guilty of an offence if :

(a) they believe on reasonable grounds that force is being used against them or another person or that a threat of force is being made against them or another person;

That is the new law that has been proposed. The current Criminal Code with respect to self-defence reads, and I quote:

Every one who is unlawfully assaulted without having provoked the assault is justified in repelling force by force

I have two concerns with respect to this section. The first is the removal of provocation as a relevant consideration for self-defence. The second is the removal of the necessity of an unlawful assault, preferring instead the word “force”. The question becomes how broad the word “force” is. The law used to say that one could rely on self-defence if one were being assaulted, which implies a violation of the person. However, the word “force” is broader than that and arguably could have an economic force element. Therefore, it broadens the situations in which a claim of self-defence may be made. I will state again that I hope the government might take another look at this matter and perhaps be open to further discussion.

I will conclude by suggesting that we are in general agreement with the thrust of this bill. As suggested by the member for Mount Royal, the bill does provide elements of clarity for prosecutors, judges and juries as well as those who may find themselves in a circumstance where they need to defend themselves or their property. Time and jurisprudence arising out of the application of these provisions in our courts will inform us if the amendments have gone too far.

[Alex Atamanenko, NDP, British Columbia Southern Interior, BC]

Madam Speaker, I thank my colleague who just spoke, and I will continue to elaborate on this bill.

As he mentioned, the bill makes good sense.

This bill seems to make a lot of common sense by directing that a citizen is able to assist in the arrest of someone who commits a crime, even if there is delay. I think that makes sense.

Bill C-26 amends subsection 494(2) of the Criminal Code, which deals with citizen's arrest, to provide greater flexibility.

The amendments will allow citizens to make arrests without a warrant within a reasonable time. The main change is the introduction of the concept of reasonable time. At present, subsection 494(2) requires the citizen to make the arrest when the crime is being committed. That is the difference between the existing law and the proposed bill.

Bill C-26 also includes amendments to sections 35 to 42 of the Criminal Code, which deal with self-defence and defence of property. These amendments will make long-awaited changes and simplify the complex provisions of the Criminal Code on self-defence and defence of property, as called for by the courts.

As several of my colleagues have already mentioned, members on this side of the House support the bill. Half of the bill consists of measures that the NDP had already proposed in the private member's bill introduced by the member for Trinity—Spadina. This part of the bill amends subsection 494(2) of the Criminal Code, which deals with citizen's arrest, making it possible for citizens to make arrests without a warrant within a reasonable time.

The other part of the bill seeks to clarify the sections of the Criminal Code on self-defence and defence of property. After a thorough review of the bill was conducted and expert witnesses were heard at committee stage, it was established that the changes made the legislative measure clearer. Our main goal in examining the bill was to ensure that it did not encourage citizens to take justice into their own hands or put their own safety at risk. Even though some concerns were raised about these issues with regard to citizen's arrest, self-defence and defence of property, we determined that the bill proposed some acceptable changes.

It should be noted that each of these three concepts already exist in the Criminal Code. Accordingly, the proposed changes in the bill will only affect existing aspects of our current legislation and will not add anything completely new.

This is what happened in committee. A diverse group of witnesses appeared before the Standing Committee on Justice and Human Rights, including representatives from the Barreau du Québec, the Canadian Convenience Stores Association, the Association of Elizabeth Fry Societies, the Association of Professional Security Agencies, the Canadian Bar Association and the Canadian Police Association, as well as academics and practising lawyers. In other words, experts testified before the committee.

So while we already supported the intent of the bill, we did propose a number of amendments arising out of the recommendations made by witnesses, as is our usual practice. That is the logical process: we listen to the witnesses and we propose amendments. Two of those amendments were agreed to and seven were rejected. More specifically, we should mention that the amendment to incorporate the subjective element in the part of the bill relating to self-defence was rejected.

That amendment would have covered all of the things done in self-defence that are commonly referred to as “battered wife syndrome”. For example, the subjective element means that a person who has been a victim of family violence may reasonably perceive a greater threat from a person who has previously been violent than a person without that background would perceive.

In other words, it is important to take into account the subjective perception of the circumstances, rather than to have a purely objective perception of the situation. We believed that the wording relating to the history of the two parties was not sufficiently precise in Bill C-26, and of course we wanted to ensure that the fact that “the act committed is reasonable in the circumstances as perceived by the person” would be taken into consideration in this kind of situation.

This was also the first time that Parliament had an opportunity to incorporate the concept of the subjective element, which had until now been developed in the case law, into the Criminal Code itself. The Canadian Bar Association and the Canadian Association of Elizabeth Fry Societies both recommended this amendment.

We did, however, succeed in having the amendment that requires that the court “consider the relevant circumstances of the person, the other parties and the act” agreed to. While that wording is not as specific as “the act committed is reasonable in the circumstances as perceived by the person”, the amendment we did get agreement to will put a greater onus on the courts to consider the history of the relationship between the individuals.

We recognize here that these sections of the Criminal Code need to be included, and even though most of our proposed amendments were rejected, we still believe the bill updates the legislation appropriately and we support the bill.

I would like to give a little context in the minute I have left. As my colleagues know, on May 23, 2009, David Chen, the owner of the Lucky Moose Food Mart in Toronto, arrested a man who had committed a theft in his store. Everyone knows the story here. I am going to conclude by saying that even though all the amendments were not agreed to, we support the bill on this side.

[Elizabeth May, Green, Saanich—Gulf Islands, BC]

Madam Speaker, I thank the hon. member for Hamilton East—Stoney Creek for his speech on Bill C-26. As the House will know at this point, I think I am the only member of Parliament who feels I must vote against this bill because of my concerns about the expansion of citizen's arrest powers.

I tried to obtain the opportunity to put forward an amendment to delete one section of the bill, which was recommended by the Canadian Bar Association. That section deals with the expansion of citizen's arrest powers. I wonder, could the hon. member for Hamilton East—Stoney Creek explain why the official opposition was not willing to second my amendment, which would have at least given us a chance to fix the one section of the bill that gives people the most trouble?

[Wayne Marston, NDP, Hamilton East—Stoney Creek, ON]

Mr. Speaker, I appreciate the opportunity to rise today to speak to Bill C-26, An Act to amend the Criminal Code (citizen's arrest and the defences of property and persons).

As I prepared for this a moment ago, I was thinking in terms of the election just a year ago and the impact that our late leader, Jack Layton, had in that particular election. This bill was something that he believed in very much, in a previous incarnation, so it brought that back to mind.

One of the things I pride myself in is that in the Hamilton area I attend the local Tim Hortons and the local food courts and I talk directly to the citizens I represent. One of the things that they believe, and I hear it said quite often, is that common sense is not as common as it once was. I think we have in Bill C-26 a fair effort on the part of the government to bring some common sense into this particular issue.

Bill C-26 would amend the section 494(2) of the Criminal Code dealing with citizen's arrest to provide greater flexibility. A little later in my remarks, I will refer to a speech by the member for Trinity—Spadina who actually introduced a bill in this place in the previous session but which died because of the election.

The crux of the problem is the timing of when people are able to complete a citizen's arrest. The law of the day says that people need to act on that citizen's arrest during the actual crime but, of course, sometimes that is just not the case. It also includes changes related to self-defence and the defence of property, which are currently in sections 35 and 42. These changes would bring much needed reforms to simplify, and this is where the common sense comes into the equation, the complex Criminal Code provisions on self-defence and the defence of property, something that has been requested by the courts over the years, not just our good citizens.

At this point, I will refer to the speech that I talked about a few moments ago.

The member for Trinity—Spadina had an event occur within her riding at a convenience store called the Lucky Moose. Mr. David Chen, the owner had been robbed numerous times in fact. It seemed that it was a very popular place to shop but it was also a very popular place to shoplift . Mr. Chen was extremely frustrated. A security camera showed an individual, who he had seen robbing his store and had left the premises earlier, coming back for some more. The individual was 37 years old and had a criminal record that stretched back to 1976.

Mr. Chen decided, along with a couple of people he worked with, to detain the individual until the police could arrive. My understanding of the situation is that he bound the person and put him into a van to contain him. It is indicated here in this speech that the police arrived within about four minutes. When the police arrived, apparently bruises could be seen on Mr. Chen's body where this individual had assaulted him but instead, Mr. Chen was charged with assault, kidnapping, forceable confinement and possession of a concealed weapon.

We need to ask ourselves where those charges came from. The concealed weapon was a box cutter. If anybody has been around a grocery store, box cutters are used all the time. It is not something that people working there would hide from everybody and conceal as a weapon. Beyond that, as far as the forceable confinement, the owner detained somebody while waiting for the police to come, somebody who had a record going back to 1976 and who just may want to try to get away.

The problem for Mr. Chen was that when the four charges were laid against him, we need to stop and think about what he was facing. The crown prosecutor offered to drop the kidnapping and assault charges if Mr. Chen would plead guilty to the remaining charges and, if he did, he would have faced 18 months in prison and a criminal record.

I am pleased to say that Mr. Chen chose not to plead guilty.

We have to wonder, from a common-sense perspective, whether our system has been stilted to the point that police officers actually put in more charges than necessary in “shooting for the moon and hoping for halfway”, an old expression used in labour negotiations. In other words, if they put into place a trading arrangement in advance: the charges are laid, the Crown makes an offer and the person pleads guilty to save himself or herself the costs of court. However, had the individual put forward a proper defence, he or she might well have gotten off. Therefore, it really makes one wonder about the situation.

Members will recall there was a bill put forth by the NDP member for Trinity—Spadina, in the last parliament. It died due to the election. On February 17, the government promised to reintroduce the bill, and I am thankful that it has done so. However, when this bill was at committee just before returning to the House, the NDP critic offered nine amendments. We felt the bill was flawed in a number of areas. Of the nine amendments we proposed, only two passed, which is unfortunate. Although we are concerned about the fact that the other seven did not pass, there is enough content in the bill to satisfy us to the point of supporting it.

After carefully reviewing the bill and hearing from witnesses, our concerns were reinforced. When we reviewed the legislation, our priority was to ensure that it did not encourage vigilante justice or encourage people to put their personal safety at risk. A horrific tragedy took place in Montreal a couple of days ago. A dispute escalated between a cab driver and a number of his patrons who had probably just come from a bar. The young men jumped on his car and hit the taxi driver. He tried to get out of there and tragically ran over one of the individuals. That is an over-the-top, blatant case situation. However, it shows us how quickly a situation can get out of hand when an individual or a group of people try to impose their physical will on someone else.

Let us look at what happens to people in a confrontation. I think I made reference to this not long ago. In Hamilton where I worked at Bell Canada, one of our technicians tried to intercede when a man was beating his wife in public. People think that they have to do something. He grabbed the man to prevent him from striking his wife, pushed him and held him against the wall. The man's wife came over, took off her shoe and struck the Bell Canada worker in the back of the head. That is an example of a situation where the individual was trying to do the right thing to protect the woman first and foremost from physical injury. His intent was to hold her husband until the police came because there were other people in the area. He did not realize that because of the strong relationship between the husband and wife, she felt she should defend her husband in the manner that she did.

There are concerns around the situations that people can put themselves in when it comes to a citizen's arrest. Unfortunately, the amendments that we tried to put through to deal with that were not addressed properly.

The NDP will be supporting this bill. We think it brings some common sense to the justice system. We are satisfied that a reasonable effort was made on the part of the government. On that point, I will conclude my remarks.

The House resumed from April 25 consideration of the motion that Bill C-26, An Act to amend the Criminal Code (citizen's arrest and the defences of property and persons), be read the third time and passed.

Business of the House

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

Mr. Speaker, I want to begin by welcoming the new House leader for the official opposition. I look forward to working with him. I anticipate a positive and constructive approach.

In terms of his question relating to the issue of the motion of the House dealing with the Chief Electoral Officer and concerns about whether the statute in place was appropriate for him to do his job, I believe that motion had an expectation of about half a year before the government was to respond. I anticipate we will fulfill that.

On his question about the budget, the government introduced Bill C-38, the jobs, growth and long-term prosperity act. The bill implements key measures from economic action plan 2012. Our plan is working, as we have already created nearly 700,000 net new jobs since the recession. Most of these are full-time jobs.

Canadians want to see a productive, hard-working and orderly Parliament, focusing on their priority, the economy. Thus we hope to have the bill come to a vote on May 14. That target will allow members to study the bill, which implements important measures from the budget that Parliament has already approved.

As hon. members are aware, May 2 will mark the one-year anniversary of Canadians electing a strong, stable, national, Conservative majority government, and it is only fitting that on this one-year anniversary, after members and caucuses have had close to a week to study the bill, we will debate our government's plan to continue creating jobs and economic growth in Canada. We will continue debate on Bill C-38, the jobs, growth and long-term prosperity act, on Thursday, May 3, and Friday, May 4.

During the budget bill study week, before that debate starts, we will cover other business.

This afternoon we will complete debate on the NDP opposition motion.

Tomorrow we will start debate on Bill C-36, the protecting Canada's seniors act, which addresses the great concern of elder abuse. This bill is part of our government's efforts to stand up for victims. This is the end of what has been an important national victims of crime awareness week, where we saw the Prime Minister make an announcement of increased support for families of missing children. We also saw the introduction of Bill C-37, the increasing offenders' accountability for victims act, which follows through on our campaign commitment to double the victim surcharge that convicted criminals pay.

Monday, April 30, will be the second allotted day. In this case, I understand we will debate a Liberal motion. I would invite the hon. member for Westmount—Ville-Marie to share with all members—and, indeed, with Canadians—what we will be debating that day, so that hon. members can prepare.

On Tuesday, we will finish third reading debate on Bill C-26, the citizen's arrest and self-defence act. Based on my discussions with the new opposition House leader, I am confident that we will complete that debate early in the morning.

Then we will move on to Bill S-4, the safer railways act, which was reported back from committee yesterday. Given the importance of improving the safety of our railways, I hope this bill is able to pass swiftly.

Since I anticipate a productive day on Tuesday, I will then call Bill C-36, but only in the event that we do not finish earlier--that is, tomorrow--followed by Bill C-15, the strengthening military justice in the defence of Canada act, a piece of legislation that has now been around for three Parliaments and should get to committee where it can again be studied.

Citizen's Arrest and Self-defence Act

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

Mr. Speaker, I am pleased to speak for a second time to Bill C-26. Those watching the House of Commons today might be thinking that they are watching a competition to see how many times the Criminal Code can be amended in one Parliament, with these Conservatives and their tough on crime agenda.

Nevertheless, I would like to say that I think this change is essential. A number of lawyers and judges say that this is a necessary change. There is no denying that the Criminal Code sections on self-defence, defence of others and defence of property have been causing some confusion in the courts for a long time. I would like to read a section of the presentation made by the Canadian Bar Association to the Standing Committee on Justice and Human Rights.

The Criminal Code provisions concerning self-defence, defence of others, and defence of property have been subject to decades of criticism, and have been an ongoing source of frustration for lawyers, judges and juries. This is due to the multiplicity of relevant Code sections and subsections, and the variations among their elements. Many high-profile cases have faltered on jury instructions regarding self-defence.

Clearly, there was a real need for change. As a member of this House, I am pleased that we were able to bring about this change. I would also like to congratulate my colleague from Trinity—Spadina for having initiated this bill in the previous Parliament.

As we all know, this bill was inspired by one specific case. Mr. Chen was trying to protect the merchandise in his store. When he discovered that the thief who had stolen a plant—I think—had returned to his store, he detained that person, but he faced charges himself.

During one of our meetings of the Standing Committee on Justice and Human Rights, someone from the convenience store owners' association was present. He talked about this need and this desire on the part of owners—those who cannot afford a security guard—to be able to protect their property and put an end to these constant thefts. He pointed out that convenience stores tend to be robbed over and over again, and this translates into serous losses at the end of the month.

I understand that situation. Many small and medium-sized businesses are trying to be independent, and they do not necessarily have the means to protect themselves by hiring security agents. So if someone steals milk every week, eventually that ends up being a loss for the convenience store. I really do understand the situation.

During testimony, we asked a lot of questions about the bill. We were a little worried about the balance between the subjective and objective elements of the bill. We even presented some amendments that, unfortunately, were rejected. The Conservative Party rejected one amendment in particular. We were disappointed about that, but we worked well together to make sure we covered the issue thoroughly.

We also considered whether this could become a trend and what we could do to make sure that it does not. By that, I mean making sure that people do not take on the role of the police. People can put themselves in potentially dangerous situations by arresting someone themselves if they do not have the experience or the strength to do it.

However, we all agreed that we do not want to see this to become a trend. We also proposed amendments to prevent that from happening, but that does not mean we should not have these provisions.

In my opinion, Bill C-26 also includes another important and interesting element.

It contains a non-exhaustive list that the judge can consult when a person pleads self-defence. This list allows the court to determine whether that person has a history of violence, whether there is a history of interaction between the parties, the nature of the force, the size of the person, etc.

Of course, I am a small woman and I would be afraid of a large man. I have reason to be afraid in certain situations. This is very important to consider, particularly when we think about women who are victims of domestic violence and who, every day, have to face a person who could do them harm. It is very important to consider the factors on this list.

I am also happy that this list is not exhaustive and that there is always the possibility of adding additional factors to it. We know that, with time, we will find other factors that should be added to the list.

We also heard comments about security guards. I find this dynamic very interesting. Our society seems to be depending more and more on security guards, and private ones for that matter. I encourage the House to examine the issue of private security guards. They are not necessarily obliged to obey the charter.

This bill will affect their work because, when they are on site, they try to protect a store or shop and its goods. They cannot always arrest someone. There is, therefore, a certain desire among security guards to see these changes implemented. They are very happy about them, and I encourage the House to continue to examine this issue. Personally, I believe that some studies are needed in this regard.

I would also like to speak about the arrest of a person after the fact. We know that, in some rural communities that do not have as large a police force as metropolitan areas like Montreal, it is not always possible for a police officer to come and arrest someone who has committed a minor crime, such as stealing plants, as in the case of Mr. Chen.

The bill clearly states that a person can only be arrested if it is believed that the police would not have arrived in time to make the arrest. It is important to include this. Perhaps it does not go far enough. We submitted a number of amendments to try to restrict this a bit, but the Conservatives refused. The bill states that it can only be done when a peace officer cannot come to arrest the person in the place of the citizen. I am pleased about this because it could be dangerous for someone to make an arrest because that person may not necessarily have the expertise or the strength required.

I will end my speech here. I would like to point out once again that we support this bill, but that we do not want it to become a trend.

[Raymond Côté, NDP, Beauport—Limoilou, QC]

Mr. Speaker, I am honoured to have this opportunity to speak to Bill C-26. This is a great honour for me given that I have happily agreed, at the NDP whip's request, to become a member of the Standing Committee on Justice and Human Rights. This is both a great honour and a great challenge for me.

I will take advantage of my speaking time to express my opinion about a bill that the committee has studied and to talk about the ins and outs of bills like this one, their impact on society and their usefulness to the courts.

It is very important to understand that the courts are working to help society, to ensure order and to suppress crime using the tools they have been given by, among others, our House of Commons. That is an important notion because the bills that we draft, discuss, debate and study in committee to achieve an outcome are just part of the courts' toolkit.

Of course, simply passing a bill does not solve all problems. Quite the opposite. The goals of a bill can be achieved only if other authorities, including this House, give police forces and other stakeholders the means to engage in prevention and education and if other levels of government are equipped to ensure that the implementation of the law achieves the desired results.

I have to say that I am also very honoured to speak to this bill because I personally believe that it is a good model. This bill should become an operational model for the work of this House and of the various committees my colleagues work on.

I want to emphasize that because the New Democratic Party, as represented by committee members, was disappointed in a number of things. Unfortunately, even though the other members of the Standing Committee on Justice and Human Rights agreed to two of the amendments we proposed, seven of our amendments were rejected, including, among others, an amendment that was very important to us and that had to do with actions taken in self-defence, such as in situations involving domestic abuse.

Some of my colleagues have given very eloquent, detailed speeches on this issue, which is very important to us. I will not necessarily go into further detail on the matter. However, I would like to come back to the fact that if there is one measure of satisfaction that all members of this House can express and, more importantly, that we all hear from our constituents, that would be great. Incidentally, I would like to point out that we are all here as representatives of our constituents, first and foremost, and we are accountable to them, to everyone in our ridings, no matter which party we belong to.

Coming back to the main point I wanted to make, when all is said and done, and considering the results achieved, Bill C-26 is a great example of how this House and its committees can work together.

Although by no means ideal—that would be going to far—it is nevertheless a model that all members in this House can follow in order to improve the atmosphere here, which is not always easy. I do not wish to dwell on examples from the past, but unfortunately, the fact is that this government continues to blindly and stubbornly advance its own agenda, while dismissing any informed opinions that differ from its own. I would like to again point out the success of Bill C-26.

I would now like to address another very important aspect that gives us a great deal of satisfaction about the goals achieved while working on Bill C-26. It is important to understand that creating legislation that deals with a subject as complicated as self-defence and the protection of personal or other property is like walking a tightrope.

Defining the limits of actions, violent or not, that in some cases are clearly criminal and in others are not, can be very tricky.

As you know, self-defence is a widely accepted principle. Some of my colleagues, like the hon. member for Toronto—Danforth, have been very clear on this subject—and I thank them for that. In my opinion, this has allowed all of my colleagues to understand that even though self-defence is widely accepted by the public, there are nonetheless some inherent risks involved in its implementation.

The New Democratic Party does not accept and will never accept vigilante justice. It is very, very important to understand that. Likewise, it will never accept the pure repression that this government is promoting. Nuance is very important. Fortunately, or unfortunately—depending on one's point of view—we do not live in a world without nuance, where everything is black and white. On the contrary, the circumstances surrounding a case before the courts can become very important and can affect the outcome tremendously. That is one of the reasons our justice system gives judges some latitude. They are not, however, given full or arbitrary latitude. Our judges have to make their decisions and work within the confines of the law and case law.

I am pleased that this bill will give our courts new tools for building more balanced precedents in matters of self-defence, protection of property and citizen's arrest. It is very important.

However, I am warning this government not to believe that passing this bill will solve all the problems. On the contrary, if we do not give the other stakeholders—such as our courts or police officers—all the tools they need to implement this legislation, then unfortunately, Bill C-26 may very well not meet its objectives.

I repeat: I wanted to put this in perspective. This bill will be only one of a number of methods for achieving the important objective of protecting ordinary people who, in some exceptional circumstances, may find themselves in situations where they could be convicted of a crime.

[James Bezan, Conservative, Selkirk—Interlake, MB]

Mr. Speaker, I rise on a point of order. I have been listening to the member talk on Bill C-26, which is about citizen's arrest, and he has been meandering all over the place, covering all sorts of different legislations and bills with which we were dealing. He talked about Bill C-31, which would improve the refugee act. Now he is talking about illegal handguns and border services. He is absolutely not talking about the subject at hand, Bill C-26, which would enhance citizens' protection.

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

Mr. Speaker, I appreciate this opportunity to speak once again to Bill C-26.

It now appears that the bill is being framed as sort of the victims versus the offenders by the other side. I would like to clarify our party's position on victims versus offenders.

The bill came from our party in the first place through the member for Trinity—Spadina. It was an attempt to turn an offender who was really a victim away from being an offender. How does that work? It is where someone who was a victim of a crime, attempted to arrest or stop a person who committed a crime and he became an offender, according to the police, because he had unreasonably detained someone.

This bill is all about that. It is to try to regain the balance between victims and offenders. The bill is now one of the very few in this Parliament to have had actual agreement on amendments at committee. Many bills have gone through committee that have had zero amendments approved by the other side.

That leads me to comparisons between this bill and other bills which have created victims, by the other side, and in which the amendments we have proposed have been outright rejected. I am of course referring to Bill C-31, which has elements of this bill in it all over the place. People who flee countries, where those people are victims of crime or who have their own personal well-being threatened, to come to a safe country are themselves victims. They are the victims of crime in those countries. They are the victims of persecution. They are victims in any imagined sense of the word.

However, if these people arrive here by the wrong method, they immediately become an offender, according to the government. If they are victims of human smuggling, they are imprisoned and are considered to be offenders.

We need to turn those things around. This is a situation that cannot be allowed to stand. Unfortunately the votes on Monday meant that those bills are now off to the Senate and perhaps they will become law.

We have a situation where the other side is accusing this side of being soft on offenders and hard on victims, and the exact opposite is true. The government has determined that people who are victims will be made offenders. The immigration bill is but one example.

That is an example of a bill where the parties actually did work together. The previous Parliament actually passed a bill that was praised and lauded, that struck a balance between people being victims and being offenders.

However, now we have a government that is insistent on its ideologically driven anti-immigrant agenda that will now treat potential immigrants who come here by magic, because they found a way to get here when they were unable to get here any other way, as criminals.

In addition, those individuals who did everything right, who acted in accordance with the law, who applied to come to Canada years and years ago are now going to be treated as criminals because they are having their money given back to them and are being told “Sorry, we did not get to your application 10 years ago, and we are never going to get to it. You have to apply again”. Those people are being made into victims by the government. We are treating people horrendously.

I also want to talk about how this bill has a possibility of creating a vigilante system. We will support it, but I want to be very clear that we do not support anything which takes Canada further into the sort of American mentality of “shoot first and ask questions later”. We do not agree with that kind of mentality.

I was in a high school in my riding last week. In that high school was a bunch of Grade 10 students. They were 13 to 15 years old. I asked them how many of them owned an illegal handgun or knew someone who owned one. Half the class put up its hand, and that is not unusual. When I asked them why all these handguns, their immediate answer was for self-defence, that they had to defend themselves against others in their communities who had handguns.

What is the government doing about the proliferation of handguns that I find in my riding? There was a drive-by shooting last night and someone was shot just last week in the same neighbourhood by illegal handguns that have arrived in my riding.

What is the government doing about the proliferation of weapons of destruction, of killing? It is removing border protections. It is laying off border services people. It is cutting the number of sniffer dogs that might stop these guns from coming into the country in the first place.

The Conservatives have decided it is better to have guns come in and to--

[Dan Harris, NDP, Scarborough Southwest, ON]

Mr. Speaker, I would like to take this opportunity to welcome the member for Toronto—Danforth to the House and congratulate him on his new portfolio as deputy critic for justice. This is the quality of debate and the type of thoughtful, reasonable and well-researched remarks that we can expect from this member after just a few short weeks. I cannot wait to see what he will be capable of in a year or two.

I am pleased to have an opportunity today to speak on Bill C-26, an act to amend the Criminal Code in relation to citizen's arrest and the defences of property and persons. In reality, the heart of this bill came from the New Democratic Party, specifically from the member for Trinity—Spadina. We need to pay tribute to her work because she put in place many of the aspects of the legislation before us.

I would also like to note that it is nice to see that for once the Conservatives are willing to accept a good idea from the opposition. I certainly wish the Conservatives would adopt more of our good ideas. If they had, of course, there would be not be 90,000 more unemployed families. If the Conservatives had taken our advice, we would not have the highest debt load of Canadian families in history. If they had taken our suggestions and listened to the NDP, then we would not have seen a real wage reduction of 2%.

Going back to the bill, it has its origins in the attention brought to a citizen's arrest two years ago at the Lucky Moose Food Mart in downtown Toronto, as many members have already stated. The owner of this store was a persistent victim of shoplifting. A shoplifter who was seen in his store walking away with some property apparently came back an hour or so later. Based on his experience in trying to get the police to respond to shoplifting events in the store, the owner felt that the only way to actually have this fellow charged was to apprehend him himself. As a result, the owner was charged with assaulting the individual and forcible confinement. This case caused a lot of controversy, some of which had to do with whether policing was sufficient in the area.

We know that in larger establishments like chain supermarkets and retail stores there are often paid security services. They have the resources to better protect themselves. These paid security services have training in apprehending people and are more familiar with the Criminal Code than the average citizen. They, in effect, perform a citizen's arrest based on seeing someone commit a shoplifting offence. They phone the police and hold the shoplifter until the police come, which is what Mr. Chen did. However, what was different in this case is that the individual had left the store and then came back. When he came back he was not in the act of committing an offence at that time. As a result, Mr. Chen, the owner of the store, was not inside the current provisions of section 494 of the Criminal Code that says a citizen may arrest someone who is found committing an indictable offence or personally believes on reasonable grounds that a criminal offence had been committed, the perpetrator is escaping from it and is freshly pursued.

Section 494 states specifically that, “A person authorized by the owner or by a person in lawful possession of property, may arrest without warrant a person whom he finds committing a criminal offence on or in relation to that property.”

There is also a provision that says, “Any one other than a peace officer who arrests a person without warrant shall forthwith deliver the person to a peace officer.”

The normal process for shoplifting is that the store detective, store owner or the private security officer can apprehend individuals, phone the police, turn them over and let the police handle it from there. In this case, because the arrest took place over an hour later on a return visit, the owner did not have any basis under section 494 to arrest the individual, which is, of course, why we are standing here today debating this bill.

The bill originally came forward as a private member's bill introduced by our colleague, the member for Trinity—Spadina. I think she may have even called it the “Lucky Moose Bill” in honour of Mr. Chen. It has received widespread support from all sides of the House with perhaps one notable exception. Many people who are in the position of lawmaker are very concerned about passing laws that would encourage a vigilante type of justice. This is why it is such a touchy area.

As has been pointed out by many of my colleagues, we have highly trained police forces operating across the country. We have a national police force, provincial police forces in Ontario and Quebec, as well as local police forces and community policing. We are incredibly proud of these men and women who serve Canadians on a daily basis. As well, in the area where Mr. Chen's supermarket is located in Chinatown, police patrol on foot. These are the people we need to rely on. On the other hand, not every store owner has access to security guards or store detectives, and certainly the police are unable to be everywhere at once.

The concern here is for people trying to run a business. In this case, Mr. Chen was trying to run a business and protect his property. Most people would think that he acted reasonably and detained the individual without using excessive force. However, it was still under the current provisions for forcible confinement that Mr. Chen was charged. If one uses force to confine someone and prevent that person from leaving, that is an offence.

However, the citizen's arrest provision provides a defence for forcible confinement by changing it to an arrest, provided the arrest is made within a reasonable period of time.

If the individual who is committing the offence is known, one would be able to simply phone the police to tell them what the individual has done and that they have done this before, in this case, taking something and leaving. In this instance, Mr. Chen did not know the name and address where this individual could be found and unfortunately felt the necessity to take action. An individual should not be chased because of the danger involved, and the police should be called. However, as I have stated, in a case where an individual is not known, the only way to apprehend an offending stranger is to take advantage of the opportunity.

We support this aspect of the bill wholeheartedly. It takes a minimalist approach by making changes to section 494. What I mean by “minimalist” is that it changes only what is required according to the circumstances in which Mr. Chen found himself.

There have to be two conditions: one must witness the offence, and the arrest must be made at the time of the offence or within a reasonable time after the offence is committed; and, one must believe on reasonable grounds that it is not feasible under the circumstances for a peace officer to make an arrest.

We could say that when the individual came back into the store, instead of arresting him perhaps the police should have been called right away. However, in Mr. Chen's experience the police often did not come fast enough in these kinds of situations and he thought that this individual would be gone again.

If these changes had already been in place, Mr. Chen would have had his defence, as it would have fit these circumstances. As legislators, we should not make laws every time something unusual happens and we must be very careful in making changes to the Criminal Code. However, when a flaw is pointed out in the law due to an unusual event and injustice can be seen, then a reasonable legislature should take action. We support that wholeheartedly.

I have had several instances in my personal life where I have come close to this kind of situation while travelling on public transit in Toronto. I have taken the TTC on a daily basis for many years and have encountered all kinds of unusual situations. I witnessed an assault on a 13-year-old in the subway by 17-year-old students, and I witnessed a TTC patron spitting on a TTC operator. In each of these situations, the assailants fled. Being a little out of my mind with anger, I did pursue them. However, during that pursuit, I was lucky enough to locate peace officers who were then able to make the arrests so that I did not run afoul of the law in some way and end up in trouble myself.

This bill is important because it ensures that individuals like Mr. Chen, who are protecting their person and property, are able to do so within the law. To be able to defend oneself within the law is incredibly important. That is why over many years there have been all kinds of changes made to the Criminal Code, and we certainly have to do so diligently.

[Craig Scott, NDP, Toronto—Danforth, ON]

Mr. Speaker, I will be splitting my time with the hon. member for Scarborough Southwest.

Bill C-26 demonstrates that the committee process in this House can actually work, when a bill starts out as reasonable in its aspirations and its general content. I will speak mostly to the self-defence provisions, which have not been getting as much attention during this debate, and I hope to have time to speak to citizen's arrest. If not, I am happy to answer questions.

The NDP worked in good faith within the committee and advanced a number of amendments, two of which were accepted. We feel that the legislation could be better yet, especially, from my point of view, on the citizen's arrest portions. However, we also feel that it has been somewhat improved and that, in general, it started out as worthy legislation. For that reason, we believe this bill should be supported, as my colleagues have been indicating.

With respect to the legislation that was originally tabled, I must commend the parliamentary secretary, the member for Moncton—Riverview—Dieppe, for his speech on December 1, 2011, when he introduced the bill. His speech was a model of thoughtfulness, tightness and elegance of exposition and, indeed, care taken to explain the bill's purpose and its relationship to the existing law and to the general principles of criminal law. That speech should be taken seriously when the legal profession begins to interpret Bill C-26, when it becomes part of the Criminal Code, with respect to the provisions on self-defence of the person, defence of property and citizen's arrest.

What is very interesting about both the reforms in Bill C-26 and the speech of the parliamentary secretary is the contrast with the approach of the current Criminal Code provisions. This is partly due to the origin of the current provisions in one of the original versions of the Criminal Code well over a century ago. However, the present Criminal Code provisions are best characterized as a patchwork quilt of relatively detailed provisions that are responding to a range of concrete situations. Partly because of that level of detail, these provisions have for some time been criticized, decried by some as needlessly complex and increasingly confusing, as we have had layer upon layer of judicial interpretation over the years.

The Bill C-26 provisions are, in contrast, a model of simplicity and distillation to the core principles in their essence. I dare say that their formulation owes a lot, although I cannot say this is for sure the case, to the civilian tradition within our multi-juridical heritage, with its preference for unifying principle and generality when we are codifying the core areas of the law.

A passage from the parliamentary secretary's speech speaks to this approach. When the hon. member for Moncton—Riverview—Dieppe spoke to the self-defence provisions in Bill C-26, he stated in part:

If we were to ask ordinary Canadians if they think self-defence is acceptable, they would say that it is acceptable when their physical integrity or that of another person is threatened. I think they would also say that the amount of force used should be reasonable and should be a direct response to the threat.

The reforms proposed in Bill C-26 are centred on those basic elements. Because of the general nature of these ideas, one law based on these fundamental principles should be able to regulate all situations that arise involving defence of the person. We simply do not need different regulations for every set of circumstances. All we need is a single principle that can be applied to all situations.

There is a lot of merit in the conceptual clarity and the focus on unifying principle that is represented by that passage. However, the common lawyer in me does worry a bit if the idea of “a single principle” is seized upon to the exclusion of what he also mentions, which is “all situations”.

General principles only live and breathe and become coherent in the real world where, hopefully, most Canadians live--when they are brought to bear on concrete situations to allow more nuanced rules to emerge gradually. It is for this reason that it is a virtue of the new proposed clause 34 in Bill C-26 on self-defence that it is grounded in a general idea, that of reasonableness of response, but this is also expressed, which is important, as “reasonableness in the circumstances”. That is proposed paragraph 34(1)(c). However, it is all the better that proposed subclause 34(2) then goes on to list nine factors that are relevant to the contextualized approach to the general principle of reasonableness.

The NDP was very concerned that these factors would themselves be principled and at the same time useful for real-world decision-making of ordinary citizens, then of police and prosecutors and, finally, of judges in their exercising of judgment as to whether a self-defence situation has arisen. In particular, an NDP amendment that was accepted modified the chapeau for proposed subclause 34(2) and that amendment is most welcome. It appears before the list of the nine factors and states:

In determining whether the act committed is reasonable in the circumstances, the court shall consider the relevant circumstances of the person, the other parties and the act, including, but not limited to, the following factors....

That sets up well the various factors. This phrasing interacts with factors (e), (f) and (f.1) in the provisions to provide a good basis for the criminal law to be responsive to the very particular challenges of applying self-defence in the context of abusive relationships, which is an area I know many members in the House have some concern about, especially where women have been subjected to patterns of violence and psychological abuse by their male partners. I think it is important to recognize that the parliamentary secretary himself, in his speech on December 1, recognized this when he said:

Another factor is whether there were any pre-existing relationships between the parties, including any history of violence and abuse.

This last factor is particularly important in cases where a battered spouse must defend against an abusive partner. As the Supreme Court has noted in the landmark case of Lavallee, it is sometimes difficult for a jury of citizens to understand how a battered spouse might stay in an abusive relationship or how the person might come to understand the patterns of violence of the person's partner. These cases do not arise often but when they do, sensitivity to these factors is crucial.

Having praised the parliamentary secretary's speech on December 1, I would also like to add that the response speech from the previous justice critic, the member for St. John's East, was also a model of constructive and thoughtful parliamentary engagement. While he expressed general support and appreciation for the intent behind the bill, he also raised questions aimed at ensuring that during the committee process, the overhauled existing provisions of the Criminal Code did not throw the proverbial baby out with the bathwater. In that respect, he said:

We need to examine it [Bill C-26] very carefully. We need to ensure that by making changes, we are not throwing away 100 years of precedent and all the advice that the courts have given. If we are starting off with a blank slate and a whole new law, it may take another 10 or 20 years of case law to understand what that means. Do we really need to go down that road?

I will end by saying that it is really important to understand that there is a conundrum built into law reform. Do judicial interpretation and the perceived understandings of the law go by the wayside when new law is enacted, especially when such detailed provisions are replaced by general provisions in criminal law? It must surely be the case that we, and by “we” I mean citizens and the legal profession, do not reinvent the law of self-defence from a whole cloth. We must engage with what was the living law under the old provisions and forge a new living law under the new ones that is in communication with what went before it.

[Charlie Angus, NDP, Timmins—James Bay, ON]

Mr. Speaker, as always, it is a real honour to stand in this House and represent the people of the great region of Timmins—James Bay.

When we talk about crime bills, crime prevention and crime strategies, it is unfortunate that much of the rhetoric in the House of Commons has not been to deal with the substantive issues but sometimes to create black and white caricatures or set up windmills. This is difficult because the issue of crime and law is complex and the solutions are sometimes not as simple. This is why the judges do need discretion in being able to interpret action and being able to interpret circumstances.

However, I find this has been a good instructive debate for Canadians to participate in and to watch, because we are trying to find a balance regarding the protection of ordinary citizens. This is something that communities have done from time immemorial.

For example, I live in the great little community of Cobalt, Ontario, where people look out for each other. I remember late one night I was coming home from a trip with my family and my little kids. I drove up in my beat-up little Toyota Tercel hatchback, which may not be the ugliest car ever built, but it was certainly in the top five. Barrelling in the driveway behind me was a big pickup truck with double wheels on the back. It sounded like a tank. Out jumped Bruce Miller, a big guy from Sherman Mine. He said, “Who goes there?” I almost fell over, and then he said, “Oh, it's you. I knew you were away. I just wanted to make sure when I saw the lights on at your house that nobody was robbing you”.

That is what neighbours do. We need to be able to say that it is okay for neighbours to check in on neighbours, that it is okay to stand up in a public square when something is wrong and say, “There are no police here, but a crime has been committed”.

In saying that, we have to be careful. We have seen in the United States where politicians fan the flames of vigilantism and horrible tragedies result, like the Trayvon Martin shooting in Florida. If we look at it, we wonder how could it be that a self-styled vigilante armed with a gun can patrol a neighbourhood and, when the police tell him to stand back, he believes his life is at threat. Under Florida law he only had to believe that. It is completely subjective. Issues of subjectivity do have a value in dealing with perception of violence or perception of threat, but they are not the only thing. We cannot just say, “I didn't like the looks of him. He seemed like a bad guy, so I shot him”. Yet, that is what is considered okay in the Florida legislature.

We have seen some of the crazy gun laws in many American states that think people should be able to carry a gun, a concealed weapon for self-defence, that they should be able to carry a weapon into a hospital because it is a citizen's right. That kind of over-the-top response creates dangerous situations.

I am looking at Bill C-26 from the sense of how we strike the balance between civic protection and ensuring that we are not putting people at risk. It is not about putting the so-called criminals at risk, but also the people who want to intervene. It is very difficult to intervene in a situation that could escalate. People need to have a sense of the ground rules. When the police are watching, they are certainly telling us to be careful about how we go about this.

There has been good discussion at committee. There has been good cross-party conversation.

On the issues of criminal justice, I had the great honour in the 1980s as a member of the Catholic Worker Movement to work with men coming out of prison and to live with men and women coming out of prison in the streets of Toronto. I saw a steady pattern in terms of recidivism. There were addictions. Addiction was probably the highest single cause of people committing crime. There were basic issues, such as a lack of a stable environment in which to actually get one's life together, and then there was plain stupidity.

I have known many cons through my work. Contrary to what we see in the movies, they are not criminal masterminds. That seems to be an oxymoron. Contrary to what my Conservative colleagues sometimes point out as these evil bandits who have to be locked up, sometimes they just make really stupid choices. I have talked to them about their choices.

I think that when we are looking at criminal policy, we have to remember that by far, the vast majority of people who end up in jail have made really bad choices. Should they be punished? Certainly. As a society do we need to have a plan to pull them back? Even more so.

I remember my friend, Robert, who died recently. In his day, Robert was a huge, massive expense on the health and criminal justice systems because of his horrific level of alcoholism. At the time, we could not get Robert into even a rooming house. There was no public housing. I remember the Conservative government of Mike Harris, and many of his old gang are on that side of the House now, telling us that social housing was a failed principle.

It was not a failed principle. We needed to get a guy like Robert a place to stay. Once we actually got him into secure housing, he sobered up. At that point he was never again a burden on the medical system or on the criminal justice system. I think he was 20-some years sober before he died. We needed to find ways to get men like him out of crisis, and it was possible.

That is where social policy comes in. If members believe that government should not be in the business of ensuring some level of social housing, then people like Robert will fall through the cracks. If people have levels of addiction, they might break into a car and get whatever change they can.

Last year I was moving and my car was broken into, probably because of the Oxy epidemic. Normally my beat-up old Chevy does not have much in it worth taking, but I was in the process of moving. There was a vacuum cleaner that my wife had given me. I did not mind sharing my vacuum cleaner with the criminal underground of Ottawa. I could have accepted that. That was in the car. There were a couple of brooms. They could have had them. But my God, my Bob Dylan collection, original vinyl, was in the back, as were my grandfather's favourite Scottish and Irish records. I have not brought forward a private member's bill about mandatory minimums for people who steal vinyl. I did manage to get some of it back. I went to the record store. I did not get any of my Bob Dylan collection; that was gone, but I got the Clancy Brothers and Kenneth McKellar records back.

I said to the guy, “Listen. These are my grandfather's records. They were stolen out of my car.” I do not think they could have even bought one Oxy pill. I said, “I do not mind paying for them. I just want the records.” The guy said, “We were only selling them for 50¢.” Being Scottish myself, I would have spent $5, maybe even $6 on each of those records.

I am not saying this to make light of the situation. Perhaps if I had been at the house that night and saw the guy stealing my records, I would have run out and stopped him. I would have at least tried to offer him the vacuum cleaner instead.

When I go home at night through the market I have seen some situations that have started to escalate. I am not out with the late, late night crowd because parliamentarians are always in bed at an early hour, so I do not see any of the stuff that happens outside the nightclubs. However, it tends to be my perception that we are dealing with people with addictions, and sometimes people with addictions do desperate things.

The question is, if someone sees something happening on the street, such as a shakedown, an escalation towards violence, what as a citizen does the person do if there are no police there? There is the question of someone intervening, such as a shopkeeper intervening and stopping someone from stealing by saying, “You cannot do this. I am going to hold you until the police come.” That is a reasonable citizen's response. That is a reasonable societal response.

In terms of the larger of issue of what people do when they see relentless situations, particularly when there is drug addiction and people are resorting to crime, we need a larger societal response. That is why I talked about the interventions and about the lack of treatment centres in northern Ontario. We do see levels of addiction, mostly involving Percocet and Oxy. There is no place for people to get treatment. That is an issue.

We cannot just leave it to the citizen to address the crime problem. We cannot just leave it to the jails. We need a larger, more comprehensive view. We have not had a holistic view of crime and crime response in this Parliament.

We will be supporting this bill. It is one little piece of a much larger puzzle. I am more than willing to take questions from any of my hon. colleagues.

[Laurin Liu, NDP, Rivière-des-Mille-Îles, QC]

Mr. Speaker, I will be sharing my time with the member for Timmins—James Bay.

Today, I am pleased to speak to Bill C-26 which deals with citizen's arrest and the defence of property, and clarifies the concept of self-defence.

The bill amends the Criminal Code in order 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.

First of all, we will be supporting this bill, which is essentially modelled after a bill previously introduced by our NDP colleague for Trinity—Spadina. I would like to congratulate her for her efforts in this regard.

You will recall that it all began in her riding back in May 2003, when the owner of the Lucky Moose Food Mart, David Chen, arrested a man who stole something from his store.

The Criminal Code allows the owner of property to arrest someone only if the presumed perpetrator is caught red-handed. In the case of Lucky Moose Food Mart, the owner arrested the thief one hour after the incident, when the criminal returned to the scene of the crime. As a result, the police charged the store owner with kidnapping, carrying a concealed weapon, assault and forcible confinement.

The charges of kidnapping and carrying a concealed weapon were dropped by the Crown, and Mr. Chen and his two co-accused did go to trial. They were acquitted of the charges of forcible confinement and assault in October 2010.

In order to protect citizens like David Chen from criminal prosecution, our colleague from Trinity—Spadina introduced a private member's bill to allow people to make arrests without warrant within a reasonable period. We are pleased to see that it has been reintroduced by the government.

It is important to note that the Canadian Association of Chiefs of Police supports Bill C-26. When he appeared before the committee, Superintendent Greg Preston said:

...CACP does support the passage of Bill C-26. We think it's important that citizens be recognized, that when they do act, they have self-defence available to them. We believe that this will assist the police in understanding, to be able to better determine whether or not somebody who does act does so lawfully.

...we'd prefer if we were on every street corner, but that's not the reality of the world. It is inevitable, and as such we certainly support the idea that they would be recognized for that.

It is important to understand that Bill C-26 does not reinvent the wheel. In Canada, the power granted to citizens to arrest without warrant is defined in section 494 of the Criminal Code. With regard to citizen's arrest, the only thing Bill C-26 does is to allow citizens to make an arrest without a warrant “within a reasonable time”.

Bill C-26 also includes amendments to provisions of the Criminal Code related to self-defence and the defence of property. These amendments will lead to long-awaited reforms that will simplify the complex provisions of the Criminal Code on self-defence and the defence of property.

In committee, Nicole Dufour, a lawyer and the coordinator for the Barreau du Québec's Criminal Law Committee, had this to say about self-defence:

The Barreau du Québec would like to offer its congratulations on the effort to simplify the legislation relating to self-defence, which has been criticized by the courts and by law enforcement bodies. In our opinion, these amendments do not alter the current case law, since the proposed provisions address the conduct and actions of a person who uses force, and not the outcome, for deciding whether the use of force in the circumstances is reasonable and lawful.

In committee, Hamish Stewart, a law professor at the University of Toronto, also pointed out the efforts to simplify the provisions on self-defence. He said:

The existing provisions of the Criminal Code have often been criticized for being unclear, for overlapping in ways that are not always clear, and for being difficult to explain to juries. There has been a long stream of criticism from lawyers, judges, and academics about the difficulty of interpreting and applying the existing provisions. So the attempt to take all these ideas of self-defence and put them into one section that would be clear and that would apply to all potential crimes I think is very welcome.

Although we support this bill, we regret that in committee the government rejected our amendment to specify that self-defence includes actions taken under the influence of what is referred to as battered woman syndrome. We wanted the bill to recognize that it is possible that a person who has been a victim of domestic violence might reasonably perceive the perpetrator of repeated acts of violence to be a greater threat than someone without this history might perceive the perpetrator to be.

We believe that the definition of self-defence must take into account the subjective perception of the circumstances rather than a purely objective perception of the situation. We thought that the terms describing the history of the two parties were not specific enough in Bill C-26 and we wanted to ensure that in this type of situation “the act committed is reasonable in the circumstances” from the individual's perspective.

The Canadian Bar Association and the Canadian Association of Elizabeth Fry Societies recommended this amendment. Unfortunately, this government did not support it.

Eric Gottardi, from the Canadian Bar Association, pointed out that the current legislation does not protect female victims of abuse very well and that it is imperative to correct this situation. In committee, he said:

It's well accepted in our case law that a reasonable person, acting reasonably in the circumstances of the accused, can have honest but mistaken beliefs about a set of facts. So someone might think that they're about to be attacked or they're about to be threatened, and they may act in self-defence. That, in fact, might not be the case. But as long as they honestly believed, and that belief was reasonable, then they are justified in using force to defend themselves, even in advance of an attack or in advance of a threat.

...

We're strongly against violence against women, and we support a law and an amendment to the law of self-defence that protects those women in their subjective belief that they are under imminent threat. It's our concern that subjective belief isn't adequately protected as the law is currently drafted.

I am extremely disappointed that the NDP's amendment was rejected and I can assure you that we will continue to press this issue. Furthermore, I met several times with women from La Mouvance, a women's organization in the riding of Rivière-des-Mille-Îles. These women do extraordinary work with female victims of violence. Unfortunately, they are not receiving any financial support from the federal government. Evidently, this government is not interested in helping women who are victims of violence by supporting the NDP's amendment.

There was a demonstration on the Hill today. We know that tomorrow, the Conservatives will be launching an attack on women in the form of Motion M-312. Canadians have fought for decades to give women the right to make their own choices about their bodies. Clearly, this government is determined to undermine women's rights. The Prime Minister has refused to clarify his government's position on this subject, and that has voters in my riding and across Canada worried.

Throughout our study of this bill, our primary concern has been to ensure that it does not encourage individuals to take justice into their own hands or to endanger themselves.

Personally, I agree with many of the witnesses who appeared before the committee to express concern that this bill gives too much freedom to the private security companies that are proliferating in Canada and Quebec. Even though a number of concerns were raised, we decided that this bill contains acceptable changes and that it will prevent people like Mr. Chen from being charged with a crime for defending their own property.

I am ready for questions from my hon. colleagues.

[David Christopherson, NDP, Hamilton Centre, ON]

Mr. Speaker, it was important that the member said the House and committees. All of us in this place know that the real work, the roll up our sleeves, get down to work, no one is watching, just do plain work, happens at committee.

We first started to see the government's approach to committee work when we were setting up the rules, when we were talking about how committees would be structured, how often people would be allowed to talk, all those basic and fundamental fairness rules. We watched the way that the Conservative government just rolled in like a bulldozer and attempted to get every advantage it could, believing again that its 39% of the votes gave it an entitlement to 100% of the power and everything that goes with that.

The member himself answered appropriately in focusing on committee, because that is where the work happens, that is where the tone is set. The work that was done in committee that led us to Bill C-26 was successful. I am willing to bet that if we looked at the transcript we would find that people cooperated, people worked together to find solutions rather than working to find divisions based on partisanship.

[Raymond Côté, NDP, Beauport—Limoilou, QC]

Mr. Speaker, I want to thank the hon. member for Hamilton Centre for his very eloquent speech. It gives us an appreciation for the situation and the work that has been done on Bill C-26.

The thing that strikes me is the spirit of co-operation that has allowed the House and the committee involved to achieve what we could call an optimal result. It may not be perfect, but perfection is unattainable. So it goes and we can live with that.

However, I think this is a start, or at least a shining example compared to other very unfortunate cases where the government decided to embark on its own path, alone. We have seen some of the consequences of that approach.

I would like the hon. member to say more about this spirit of co-operation that we wish for in order to achieve results that benefit everyone since, after all, we are all representatives of the Canadian population as a whole.

[David Christopherson, NDP, Hamilton Centre, ON]

Mr. Speaker, it was not that long ago in a minority setting that the government did not really want to, but was forced to, work with other members. We did get things done. The government has had from the beginning the attitude that it has a majority and somehow 39% of the votes give it 100% of the power. The Conservatives believe that they can just rule at will. Their whole demeanour changed once they received that majority. It is a shame, because Bill C-26 is an example of how working together benefits all of us politically, but more important, provides better legislation, better laws and ultimately safer streets.

[David Christopherson, NDP, Hamilton Centre, ON]

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

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

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

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

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

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

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

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

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

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

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

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

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

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

[David Christopherson, NDP, Hamilton Centre, ON]

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

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

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

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

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

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

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

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

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

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

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

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

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

[Françoise Boivin, NDP, Gatineau, QC]

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

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

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

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

Madam Speaker, I am pleased to have an opportunity to speak at this third reading stage of Bill C-26, An Act to amend the Criminal Code (citizen's arrest and the defences of property and persons). We would amend the Criminal Code in two respects, in relation to the issue of self-defence and the issue of what is known as citizen's arrest, which is contained in section 494 of the Criminal Code.

The circumstances giving rise to this bill in the first instance arose through the case of David Chen who was a shopkeeper in the city of Toronto at a store called the Lucky Moose. On that particular day, the Lucky Moose was not so lucky because of an incident that ended up in an individual being arrested and subsequently the store owner himself being the subject of criminal proceedings. This gave rise to a consideration of the rules with respect to a citizen's arrest in Canada under the Criminal Code.

This was originally a private member's bill brought forward by the member for Trinity—Spadina, and it ultimately was incorporated into a bill by the government, which also decided it was time to give consideration to suggestions that had been made by many, including academics and the Supreme Court of Canada, which suggested there was a great deal of confusion in our law on self-defence. We had a provision with approximately eight sections of the Criminal Code that dealt with self-defence. They were not necessarily contradictory but gave rise to potential interpretations of contradiction and caused problems of interpretation and sometimes contradictory results in the case law. An attempt was made to change that at second reading here in the House. This bill on the whole is a reasonable, if not perfect, example of inter-party co-operation on the creation of legislation that is literally seeking to improve legislation that is brought before the House, in this case by the government.

We had agreement at second reading to proceed to committee and we went through a series of hearings where we heard from individuals including Mr. Chen, other representatives of shopkeepers and store owners, someone from the security guard industry, lawyers in private practice and officials from the justice department. Our expressed intention at second reading, when dealing with this legislation, was that we ought to be very vigilant here when we are taking provisions of the Criminal Code. I do not know if they have been amended in decades or even 100 years, since the Criminal Code was first codified into law. There were not many amendments to these sections. Some might say they had stood the test of time, but they had not stood it very well and it was time to revise it.

The worry was that when we make these changes, we did not want to make changes that would cause problems and that have unanticipated results. Therefore our intention was that we ought to be very careful, that we ought not to treat this as something that could be done in a perfunctory manner. There was some rush in December that this could all be done in a matter of three or four days before Christmas. That was not our view, in our experience of hearing from the witnesses and considering the amendments that came through at the committee stage. There were a dozen or more amendments, probably 15 or 16, proposed by all parties. I know there were a dozen NDP amendments and four by the Liberals, and maybe the Conservatives did not bring any amendments. I do not see any here on my list.

Nevertheless, there were very extensive discussions in the committee while hearing from witnesses and legal counsel who had acted in a number of cases and who understood the law. We heard from the Barreau du Québec and the Canadian Bar Association. They very helpfully offered their comments and advice.

Based on some of this, as New Democrats and as the official opposition, we put forward a series of amendments designed to improve the bill. I will say that some of them were accepted by the government members on the committee, and we are very pleased to see that. Others were not, and obviously we were disappointed that the measures we brought forward in those instances were not accepted.

However, it was a collaborative effort. We did our best as a committee to not only come to conclusions and be reasonable but also to listen to the advice of the officials from the department of justice who were there as technical experts on the interpretation of various provisions of the existing law and who had their opinions with respect to how it might be interpreted based on the existing case law.

On the basis of some of that, some of the amendments we had proposed as being beneficial were in fact withdrawn by us. I say that just to let members of the public who are watching understand how this process works.

We have legislation that is brought forth. If it is a government bill, it is brought forth by the government. It is debated at second reading. It goes to a committee where witnesses are heard, often expert witnesses, in this case lawyers, but also members of the public, who we heard from in this particular case. Then we have what is called a clause-by-clause study in committee on each element and each word, if it comes down to that, especially when we are dealing with criminal law because every word is given a meaning by the courts.

We came forth with amendments that we thought were appropriate. These were then debated in committee at clause-by-clause consideration with experts, and ultimately what we have before us at third reading is this bill as amended.

That might sound a bit tedious, but it is also extremely important. What is written in these sections of the Criminal Code determines what the courts call the liberty of the subject or the freedom of a citizen. A citizen's freedom can often depend on the interpretation of one, two or three words in the Criminal Code. That is why it is important.

Let me give an example of why that is. The amendment to the citizen's arrest provision is designed to change the law so that a citizen's arrest, which under the existing provisions of the Criminal Code must be made at the same time as the commission of an offence, has now been changed. The new wording will say that the arrest to be made within a reasonable time.

That sounds like a small difference, but it can be the difference between the guilt and innocence of someone who is charged with making a citizen's arrest that, as in the case of David Chen, was not while he caught someone in the commission of an offence but was a couple of hours later. That person had left Mr. Chen's store after being seen to steal something, came back a couple of hours later and was then arrested. Mr. Chen was charged with kidnapping, unlawful confinement and other charges.

He was eventually acquitted by a judge, but nevertheless the crown and the police felt very strongly that they had the right and should have the right, and expressed no regrets for it afterwards, to arrest the store owner and charge this individual because of their understanding of the wording of the act. The judge found extraneous circumstance, but it would be unusual for the words not to be applied as they were in the Criminal Code.

The change to add “within a reasonable time” is a good one, and we accepted that. We also thought, however, and this is where one of our suggestions was rejected by the committee, that there ought to be a further protection in the sense that while an arrest should be made within a reasonable time, and we agreed with that, it should be made at the first reasonable opportunity.

We had evidence before us suggesting that the law was too broad, as it was written by the government, that it would allow for organizations such as private security operators to turn themselves, essentially, into private investigators who would act as agents of individuals and arrest somebody at home some time later. We tried to put some constraint on that by saying it had to be not only within a reasonable period of time but at the first reasonable opportunity.

Another amendment, which was defeated, suggested that it should be within a reasonable period of time after the offence is committed and at a place that is within reasonable proximity to where the offence was committed. In other words, it does not have to be in the store. If the individual was found down the road some 20 or 30 minutes later, he or she could be arrested, but the individual could not be hunted down over a period of time, such as after finding out where the person lives and arresting him or her at home. People would be required to phone the police to say, “Here is the address of the guy who stole from me. I am satisfied that he lives there. Would you arrest him, please?” That was rejected and there were arguments made on both sides as to why and why not.

However, other amendments we proposed were accepted. For example, when we talked about the other topic of self-defence, we wanted to ensure the court was going to take certain factors into consideration and added an amendment of our own. We wanted to ensure that it must take into account the relevant circumstances of the other parties involved in the act, and also other factors. Those factors listed in the original bill had to do with size, age and gender of the parties. We sought to add the physical capacities of the parties because gender by itself may not be sufficient. There could be a man with a slight build, a mild manner and incapable of doing certain things, or there could equally be a woman who was in fact a formidable opponent, trained in physical combat, martial arts or any number of activities. When taking into account the person in respect of self-defence, one should take into account not only gender but the physical capacity.

These are just examples of the kinds of changes that were made in our committee to improve the quality of this bill.

We had some reservations about some of the wording, which is evident in the dozen or so matters we brought forward, but on balance we are satisfied that what we have at the end of the day is an improvement over what was there. As to the confusion that reigns to some extent on the issue of self-defence over the last number of decades that has been recognized by our courts, there have been at least attempts to resolve it with the best information and the best we have been able to bring to the task up until now. We did not want to see another 20 years of litigation to determine whether we made a good choice or not. That was our worry.

We have given it the kind of scrutiny that a legislative committee is expected to. That is important. That is, after all, our job. We come here to represent our constituents on all sorts of levels, whether they be major policies in terms of economic development, international affairs, the redistribution of wealth and taxation or attempting to solve social issues like housing and poverty, but we also make laws. One of the laws that governs all of our citizens is criminal law. In crafting those laws we, the people in the chamber, are the ones who have the ultimate responsibility for passing those laws. This is a prime example of how a committee would look in detail.

Most of the justice committee members are lawyers. I happen to be a lawyer, but I do not for one minute believe that one needs to be a good lawyer to make good laws. I would be the last person to say that. Also, we had good advice to the committee from witnesses who are not lawyers and also from members of the committee who had their points of view on both sides, our side as well as the other. They put their common sense, knowledge, experience and brainpower to the task of making the law better. This is a good example.

My colleague, the previous speaker, talked about how this particular government uses the criminal law for political purposes. That is a big shame. It is a serious shame. I had the honour of being the justice critic since last October. I am not anymore; my colleague is now the justice critic, and I commend her to her new role. I know she will be equal to the task. It is an important job.

I do decry, along with the previous speaker, my colleague from Winnipeg Centre, the attitude the government has toward criminal law. It is the most appalling, degrading kind of debate. We should not even give it that name. To suggest that someone is obviously in league with child pornographers or pedophiles if that person disagrees with the government's idea of what the criminal law ought to be—the wording and nature of crime and punishment and how to go about dealing with that—is the most appalling abuse of parliamentary precincts that I have encountered, and I say that with some experience: I was first elected to Parliament 25 years ago next July.

That is the most appalling thing that I have heard in this Parliament and the other parliament that I was in with the Province of Newfoundland and Labrador. It is appalling for the government to suggest that people who disagree with it are in league with criminals and are here to defend...well, on one day it could be pedophiles, the next day terrorists, the next day child pornographers. It is appalilng that the government would do that.

However, amidst all that, there was this small island in dealing with Bill C-26, in which the justice committee sat down and talked, for the most part civilly, about the rules governing self-defence. It is an extremely important part of our criminal law. The right of citizens to defend themselves when under attack or under a threat to their lives or safety or property is a most important right that citizens have, and a criminal law should reflect a proper understanding of how that ought to be interpreted.

The right of citizen's arrest is not something new. It did not come about as a result of the Criminal Code. In fact, the citizen's arrest predated the development of police forces. At one time that was the only way that people were arrested for crime, by an act of a citizen. When we codified the common law, much of the criminal law was governed by common law, and in many respects it still is in some countries, including England, although it has codified things recently.

The citizen's arrest is also a fairly fundamental kind of right that citizens have to defend themselves and to arrest someone who they find committing an offence. Both of these things are extremely important, and we did have, with the work of this committee, a very small island of working to try to improve it.

It is not perfect. I hope the courts will not take 10 or 15 years to figure out what it really means and I hope we will not have controversy, but I think we have done a good job, and we support the bill as amended.

[Pat Martin, NDP, Winnipeg Centre, MB]

Madam Speaker, I thank my colleague from Surrey North for agreeing to share his time with me as we debate Bill C-26. I asked specifically for an opportunity to join the debate today on behalf of the constituents I represent in the riding of Winnipeg Centre.

Every time I poll the constituents in my riding as to what their top of mind issue might be, consistently for the last 15 years the number one issue has been safety, crime and criminal justice issues, safe streets and the right to walk the streets free of molestation and with a sense of comfort and safety. That has been the prevailing issue of about 34% or 36% of those people answering my surveys. Things like tax cuts are down around 8%, and perhaps that is a function of the socio-economic demographics of my riding as it is one of the poorest postal code areas in the country. Low income people are more likely to be affected by and have their lives touched by crime, violence and even the criminal justice system.

I am particularly interested in this legislation and how it would affect ordinary Canadians.

I also want to compliment and pay tribute to my colleague from Gatineau for representing the party on this sometimes controversial issue with integrity and a sense of balance that such a sensitive issue calls for. I also recognize the comments that were made by other members of the NDP and the origin of this particular bill.

The member for Trinity—Spadina can claim responsibility for us having this debate today as Mr. David Chen, the owner of the Lucky Moose Food Mart, resides in her riding. It was the very high profile issue associated with Mr. Chen's frustration at so often being the target of shoplifting at his small business that he was compelled to take what we would consider to be dangerous and extraordinary action but which most Canadians would agree was justified and necessary at the time.

However, we are dealing with a bunch of competing rights. As with many pieces of legislation that properly fall before the chamber, it is an issue on which reasonable people can reasonably disagree and therefore we do not want to take this issue lightly.

In the few moments that I have I will start from the premise that the benchmark of a civil society is the quality of its criminal justice system and that the criminal justice system should be measured by its fairness and its application instead of the concern that there is sometimes an arbitrary application of criminal justice issues. Also, in the element of fairness, we must take into account some of the driving forces underlying the problem as it is presented to us.

I am a former labour leader. I have negotiated dozens if not hundreds of collective agreements. Every time we sought to change a clause in a collective agreement, two questions were put to us by the management side: First, why do we want to make this clause change? Second, has this clause been a problem during the life of the collective agreement?

I think we can safely say in this example that there is justification for opening section 494 of the Criminal Code that deals with a citizen's arrest based on the extraordinary case of Mr. Chen and the Lucky Moose Food Market that brought the public's attention to this compelling issue.

The reason I began in the context of trying to describe the socio-economic demographics of my riding is that the opposite of poverty is not wealth. The opposite of poverty is justice. When we look at the high incidents of crime and in fact violence and contact with the criminal justice system in low income areas I think the argument makes itself.

When I look at the circumstances surrounding Mr. David Chen and the case that was put forward so compellingly by my colleague from Trinity—Spadina, I am gratified to know that all parties in the House of Commons acknowledge the necessity but, at the same time, we are confounded by the Conservatives' approach to criminal justice issues in the 41st Parliament and, in fact, even in the 40th Parliament when they were in a minority situation.

We have seen issues used as an excuse to raise the spectre of crime and violence in the streets as justification for putting forward legislation that cannot be easily justified. I am thinking of Bill C-10 where the Province of Manitoba, my home province, actually came to the government asking for certain changes with the detention, for example, in the auto theft situation when Manitoba was experiencing a great rash of auto thefts, often by young offenders. The police and the courts were frustrated by the limitations of holding a young offender who may have been apprehended that evening in the act of auto theft, being released the same night and then sometimes getting picked up by the same police in yet another vehicle, all in the context of a 12-hour period.

The Province of Manitoba came to the federal government urging it to make changes to where young offenders could be detained overnight until such time as they could make their first court appearance. That found its way into this new bill that has been quite controversial, but talk about baby and the bathwater. The ultimate legislation that we wound up with went far beyond any reasonable justification.

As I illustrated, the first question we need to ask when we open legislation to amend a clause is whether there is justification for it. We need to know whether the clause has been a compelling problem? In many of these cases, the only thing we were trying to address was a straw man built up by the Conservatives to strike fear in the hearts of Canadians and then they tried to paint themselves as the great saviour, the only ones who could protect the people from this manufactured fear. However, all the empirical evidence shows us that the rate of crime, especially crimes of personal violence, et cetera, is way down statistically.

However, that did not stop the Conservatives from mailing ten percenters into my riding trying to whip up a frenzy of fear. I saw one of the ten percenters, back when MPs could actually mail ten percenters into other people's ridings, and it had a picture of a guy breaking through a window with his face shielded and with a knife raised above his shoulders as if he were going to break into our house and murder us in the night with a knife if we did not vote for the Conservatives to stop him from breaking in and killing us. That was the message, for all intents and purposes.

Even at a time when we are trying to calm people down and show them the actual statistics that the streets are safer than ever before, even in an area that experiences a great deal of property crime, et cetera, no one is at particular threat of being murdered in the night by this junky with a knife.

There is a dishonesty, a disingenuous aspect to this. The Conservatives are like a duck on a June bug when it comes to any issue associated with criminal justice issues, and their reaction is far disproportionate to the actual cause, need and demand.

In the context of Bill C-26, our party supports it with concerns that have been expressed by many of my colleagues.

[Françoise Boivin, NDP, Gatineau, QC]

Madam Speaker, I thank my colleague, who is a member of the House of Commons Standing Committee on Justice and Human Rights. We are very pleased to have the benefit of his knowledge in this matter.

I especially appreciated that my colleague pointed out that Bill C-26—as I mentioned in my speech this morning—is an example of the work we can accomplish, even with the members opposite, when there is a little goodwill, instead of continual gags, time allocation motions and so forth. This bill is a fine example. We were able to discuss it without being told that it had to be passed at all costs in a certain time frame. There were discussions and debates, which were a little heated at times, but it was all done for the well-being of Canadians, the people we represent.

My colleague was also a member of the Standing Committee on Public Safety, where we saw how difficult it can be sometimes to understand this government's reasoning. It accepted the bill introduced by our colleague for Trinity—Spadina. However, does he think that we will ever again have this type of co-operation from the government?

[Jasbir Sandhu Surrey North,, NDP]

Madam Speaker, today I rise to speak to Bill C-26, which amends subsection 494(2) of the Criminal Code, dealing with citizen's arrest.

First I want to say that the New Democrats support the bill. It is actually something that my fellow New Democrat, the member for Trinity—Spadina, had been advocating for quite some time.

Half of the bill proposes measures that her private member's bill had previously called for. My colleague introduced that legislation, which was known as the Lucky Moose bill, in response to an incident that happened in the city of Toronto in 2009. David Chen, the owner of the Lucky Moose Food Mart in Toronto, apprehended and restrained a man, Anthony Bennett, a few hours after he had stolen from his store. When police arrived, they charged Mr. Chen with kidnapping, carrying a dangerous weapon—which was a box cutter, which most grocery store workers would carry normally—assault and forcible confinement. Crown prosecutors later dropped the kidnapping charge, but proceeded with the charges of forcible confinement and assault.

According to the Criminal Code as it is currently written, a property owner can only make a citizen's arrest if the alleged wrongdoer is caught in the act. Clearly, this portion of the Criminal Code needed to be changed. My colleague saw that and introduced her private member's bill, and the government followed suit with its own very similar bill.

What surprises me most about this bill is that the Conservatives are proposing something in the realm of public safety that actually makes sense. It is very surprising that they are proposing something that is sensible, because what we have seen from the government, from the Conservatives' crime agenda, certainly does not make any sense at all. Most of the time the Conservatives seem to be living in some kind of alternative reality, completely devoid of factual information and common sense when it comes to crime.

Normally, instead of answering critical questions about a reckless public safety agenda that is destined for failure, the Minister of Public Safety has preferred to hurl accusations and insults across the floor, such as standing in the House and accusing me of supporting child molesters because I questioned the complete failure on the side of the government to estimate the cost of its reckless crime agenda.

Sadly, we know that the facts do not really matter to the government. In Senate committee hearings on Bill C-10, the public safety minister told senators to ignore the facts. He said, “I don't know if the statistics demonstrate that crime is down. I'm focused on danger”.

That was not the first time we have been told to ignore the facts by Conservatives when it comes to crime. In response to questions about Bill C-10, the Minister of Justice said, “We are not governing on the basis of the latest statistics”. When it comes to public safety, ignoring the facts seems to be in the Conservatives' talking points.

Of course they want us to ignore the facts, because the facts are on our side. The facts will tell us that their crime agenda will cripple our criminal justice system and will not make our communities any safer.

I am happy to see that the Conservatives actually support something worthwhile, Bill C-26, but this, unfortunately, is the exception, not the rule, when it comes to the Conservatives' approach to crime. While I support this bill, which has been improved by NDP amendments in committee, I remain very concerned about the safety of our communities across this wonderful country of ours.

The NDP priority in reviewing this legislation was to ensure that it did not encourage vigilante justice or people putting their own safety at risk. While we understand that there are concerns about these matters in relation to citizen's arrest, self-defence and defence of property, we have determined that the bill proposes acceptable changes.

It should be noted that all three of these concepts already exist in the Criminal Code. Therefore, the changes made by this bill would only modify aspects of our current laws and do not introduce anything radically new.

The justice committee heard from a diverse group of witnesses while considering this legislation, including the Canadian Bar Association, the Canadian Police Association, academics and practising lawyers. Although New Democrats have already supported the intent of this legislation, we have brought forward a number of amendments in accordance with recommendations of witnesses. One successful amendment we brought forward will place a greater onus on the courts to consider the history of the relationship between the individuals.

We recognize the great need for these sections of the Criminal Code to be updated, and although most of our amendments were defeated, we still believe this bill accomplishes an adequate update to the legislation and we support this bill. Also, legal experts the committee heard from were, in general, supportive of the proposed changes to the self-defence and defence of property sections of the Criminal Code. They all acknowledged that these clarifications were absolutely necessary.

In conclusion, I want to thank my colleague from Trinity—Spadina for her work on this issue and for bringing such a worthwhile issue to the House. I also want to thank the minister and members across the aisle for their support to bring this initiative forward. As I have mentioned, we do not often see anything sensible coming from that side of the House when it comes to crime. In fact, when it comes to crime, the Conservatives are usually detached from being sensibile altogether and pursue an approach that has been tried and has failed.

I hope to see the members opposite keen to adopt more New Democratic ideas in the future. We have many that I think make a lot of sense and are aimed at making our communities safer for all Canadians to live in.

[Malcolm Allen, NDP, Welland, ON]

Mr. Speaker, I am pleased to rise to speak to Bill C-26, an act pertaining to what civilians can or cannot do when it comes to crimes that are perpetrated against them or their property.

It reminds me of my colleague, the member for Trinity—Spadina, and her constituent who was arrested after a perpetrator, who committed crimes against his particular business, was apprehended by him in a citizen's arrest.

When we look at the bill in the sense of what we should do on a go forward basis, it reminds me that we always need to think about many things when we suggest to citizens or when we try to protect them from charges against them when they try to protect themselves or their property.

I am always cautious around that type of action. Citizens need to be careful that they do not push the limits in what they do to protect themselves and their property when perhaps leaving the situation would be more advantageous. They could be either attacked or hurt when a situation could be defused.

Clearly we want to help them protect their property, their families and themselves from unwanted criminal acts that are perpetrated against them, but by the same token, we do not want to mislead them into believing that somehow, all of a sudden, they should become some form of adjunct police force.

As much as we support the bill, I would caution folks that if they are faced with the predicament of being attacked or their property being broken into and they are unable to move away, they should take reasonable precautions to ensure their property or their family is protected in a safe way that will not inflame or injure themselves or put them or their families at an even greater risk. It is not wrong to protect one's property, one's family or one's self from the perpetrator of a crime.

However, we do not want to give that false sense that individuals should be police officers because they live out in the country. I live out in the country, and to be honest, there really are no police officers in the neighbourhood for any of us who live in rural parts of Canada. The officers are quite far away, and that is as it should be. There are not many of us there and we cannot have an officer for half a dozen houses if they are miles and miles apart. It quite often takes a period of time for folks to get there.

Many of us have been victims of folks who have taken our property. I was the unwilling victim. It happens in rural Ontario, and I am sure it happens to rural constituents across this great land of ours, those who have nice sheds. When I say a shed, it is not the ones we get at Canadian Tire, 7x12 with flimsy stuff. These are great big sheds that hold full tractors, lawn tractors, lawn implements or other implements. We get a rash of folks coming across the rural constituencies who simply decide to load up their trucks with our goods.

In my case it was the famous whipper-snipper and chain saws. The only fortunate part was that whoever the perpetrators were, they could not figure out how to get the lawnmower tractor to move. They did not know that if they yanked on the little lever on the back, it would free-wheel and they would be unable to move it because the transmission was locked, fortunately, so I did not lose that. However, I lost a whole pile of other things.

Unfortunately for me, after I decided to bolt things up and chain them all together after I had replaced them, about four months later they decided to pay me another visit and scooped more stuff, but still could not get the tractor. I have to thank my dad for that, albeit he is no longer with us. As a millwright, he left me great big 10 and 20 foot lengths of chain with the great big locks he used to have when he was an industrial millwright, which would take one heck of a heavy bolt cutter to get through if an individual wanted to do that. These folks do not have bolt cutters. They do not really come equipped with that type of tool. Therefore, they could not get the additional stuff from me.

If I had been home at the time and witnessed the fact that those folks were entering my property and stealing valuable tools from me, which I need for the purposes of looking after my property, I certainly would have been at the window, yelling at them. Depending on the circumstances of what was going on, I may have been reluctant to actually go out and physically confront them. If there were more than one of them, and I was by myself, that may not have been what I would have wanted to do. I certainly would have been on the phone to 911. I may have been marking down their licence plate number and then allowing those sorts of things to go on. I certainly would have been protecting my property from that perspective.

In all cases it is not as simple as that, because the person might have been trying to come in through the door of my house. If I happened to be home with my family, that would present a different and unique danger.

If I am protecting myself and my family from a perpetrator who is intruding into my property, with malicious intent, whether that is to physically harm me or my family, or to do damage to my property just by simply being a malicious individual, do I deserve the right to then try to protect my property? The answer to that is yes, in the perspective of understanding what one needs to do.

People need to take caution, as I suggested earlier, and establish what the situation truly is. If it is perhaps younger people, who may be more afraid of the victim than the victim is of them, the victim might be able to get them off the property. Then again, it could be a person who is well-armed. It could be more than one person. People need to look at the situation and decide how to protect themselves and property. There should be no cost to victims who protected their property by charging them rather than the person who tried to invade their property.

It gets to the nub of the situation of the rights of an individual who is about to become a victim. Clearly, that is what happens to those of us who are either on our property or perhaps are even attacked in the street while walking, for instance. We are victims of a crime and we are simply trying to defend ourselves from an attack of some description.

What it amounts to is the law should not be making a person a victim a second time. The individual has already been victimized the first time. The victim has already perhaps lost property or has had property damaged, or has received some sort of physical harm.

At the very least, people having had their property taken away from them is an emotional violation, whether they are harmed or touched in any particular way. Even though people may not be there at the time, there is a certain value to losing property, whatever that happens to be. In my case it amounted to a few thousand dollars. Those are things that a person has had for a period of time. In some cases, a person's house may have unique value or a person may have intrinsic thoughts that hearken back to loved ones. Maybe it was a prized possession that grandma left for the person. If the person loses that, the emotional violation is always there.

Any time people are victims of crime, the last thing that should happen is that they are victimized again, or at least feel as if they are victim again. They have already been victimized by someone who has decided, in a malicious way, to do damage to their property, to them and their family.

We would all want and hope that folks would not perpetrate this type of violence or crime against other folks, but it would be naive in the nth degree to think that somehow all crime will just end. That is not the case. As we all know, crime is perpetrated, albeit we know it is on the decline.

Based on that, we have to look at what we can do to ensure that crime continues to decline. Albeit my colleagues across the way and I disagree about how to handle crime and punishment and rehabilitation or how to meet the balance. This is about folks who perpetrate crimes against others and the consequences of doing that, and there should be consequences.

What should the consequences be? What do we do to ameliorate that situation because the vast majority of those who perpetrate crimes eventually come out of incarceration or remand, depending on how it is done, or will be in the general society? How do we deal with that particular situation? How do we keep folks from taking other people's property? Ultimately, it really is an issue of how to move forward on crime.

This is about ensuring that the victim does not become another victim. That is the last thing New Democrats want. It was our colleague, the member for Trinity—Spadina, who in the last Parliament asked how one could protect oneself. Is it fair and just and right to use the powers that are available to citizens to ensure they protect their property, their person or family without crossing the line and committing a criminal act?

What is that line? How do we make that line broad enough so folks do not inadvertently trip over it because they did not understand it? How can we continue to move forward and allow them to act in a responsible way because they are a victim?

The folks this legislation would cover are the unwilling and unintended victims of a crime. They had no knowledge that a crime would be perpetrated against them. This was not a contrived act that the victim knew about. The victim had no sense that a crime would be perpetrated against him or her. This really was about an unintended situation happening to the victims, not unintended by those who attacked them. An intended act is when one decides to kick down someone else's door and ransack the house.

Ultimately, what are the consequences on people who receive that intentional act? They have to understand what the law will allow them to do. They have to understand that they can protect themselves or their property knowing in the full light of day that they will not have to worry about being criminally charged because of some unintended act based on an intended act by someone else who broke into their home and attacked them, their family or their property.

Again, it really has to be a cautious act. I would not want folks to think that this becomes a carte blanche bill that would allow one to set up some form of quasi judicial force or, for those of us who live rurally, would allow one to set up some sort of adjunct police force that is not the auxiliary police force.

We already have auxiliary police officers throughout the country, in Ontario and in my region. We have many of them because we do not have enough police officers. These auxiliary police officers are used at special events and parades. They are used extensively for the Labour Day Parade to help with crowd control and traffic. In my neck of the woods there are some great hills for cyclists. The auxiliary police officers control the intersections so that the regular officers can be out doing the work they are empowered to do under the law. We do not want to see another adjunct to the auxiliary officers such that, for example, the member for Welland will now have a group, and not just a neighbourhood watch.

A neighbourhood watch is a good thing. It is a neighbourly thing when one looks after a neighbour's property by simply paying attention when the neighbour is away. In my case, when I travel here, I know that my neighbour, Dave, who lives down the street—and I will put a plug in for my neighbour—and owns Longlack Poultry comes to plow my driveway, which is greatly appreciated. He has been doing this for a number of years now. My partner appreciates when the driveway is done and she is not waiting for me to get back from Ottawa to do it. I want to thank Dave for that. He helps out with my property and keeps an eye out, as do other neighbours because we do not live next door to one another as people do in the city.

When I say that we live next door to one another we are about a half mile away from each other. The neighbourhood watch is really about noticing a suspicious vehicle. Unfortunately, that is how my material was lost. That is how folks in rural Canada lose material. Trucks pull up and look like moving vans, but they take all of one's stuff. However, we do not want to see people in a neighbourhood watch who think that they somehow have the power of the police to interfere in situations and act as if they are members of a quasi police force. I do not believe the bill intends for that. I would caution folks that is not the way we would like to see this go. The police forces have a legitimate role and they do it in a very effective way. We congratulate and thank them for all of their hard work.

This reminds me of when I was on the community policing association committee for my neighbourhood. I used to ask the sergeant about the number of police cars in the neighbourhood when we had break-ins. He would say that they were re-evaluating and would place a car here and there. I remember a complaint from a constituent that a car was not in our neighbourhood. There were none in the town at all. When I asked the sergeant why there was no car within the area, he told me that there was a stabbing in Niagara Falls. He asked if I would prefer the police car to be in my town or somewhere else. I said that I would prefer it there was not a stabbing at all. There was no car in my area because he had to allow the car to go to a very serious situation. Someone had been violently attacked and stabbed.

I will finish by saying that as New Democrats we certainly appreciate the bill coming forward. We have made an amendment to it and we would like to see that happen. However, I will say to the folks out there, whenever one is in danger, be careful, call the police and try to ameliorate the situation so that more harm is not perpetrated on oneself or one's family.

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

[Kevin Lamoureux, Liberal, Winnipeg North, MB]

Mr. Speaker, as I have listened to the debate over the last couple of hours, what I have found of most interest is the way in which members are conducting themselves, and the types of speeches we are hearing.

It has been interesting to compare Bill C-26 to another crime bill that the government had, Bill C-10. There is a significant difference. I would suggest that with this bill there is fairly widespread support. Support for this bill is not only here in the House of Commons. I would suggest that a vast majority of Canadians would be quite pleased to see not only the debate that is occurring but more importantly what Bill C-26 is proposing to do.

We can compare that to Bill C-10. All of the opposition parties were quite critical of the government. The government was not prepared to listen to the opposition parties. It was a very controversial debate. The government even had to bring in time allocation. If we reflect on what the public was thinking about Bill C-10, on the crime file, we will find that there was quite a difference of opinion and a different way of dealing with crime.

There was a philosophy talked about that was, in essence, taken from the Deep South of the U.S., a philosophy of building more prisons and putting people in jails, a policy that has not worked as opposed to a policy that favoured trying to prevent crimes from taking place.

I look at today's bill as a bill that ultimately will pass. The government will not need time allocation for Bill C-26. There is a sense of co-operation. There is a sense that this is indeed a bill that deserves passage. I suspect it is only a question of a couple more hours, a few more speakers, and we will see Bill C-26 pass.

Most Canadians believe that citizen's arrest is pretty straightforward and that they could do that today. In certain situations, yes, they could do that today. However, we have heard examples of just how much misunderstanding there is around that.

Let us look at the example of a citizen's arrest in a poor environment. An individual walks into a store, grabs some merchandise, then walks out. Halfway down the block, the thief is apprehended by the store owner or an employee of the store. The store owner or employee is putting himself or herself at risk of numerous charges. The way the system is set up, the store owner is in fact potentially going to be a double victim. He or she was victimized when the property was stolen from the business. There is a very strong likelihood that charges will be laid against the store owner or employee because in apprehending the thief a half-block away from the store, and not in the store, he or she could be charged with unlawful arrest.

However, one member explained earlier that if the individual was in the store when the citizen's arrest was made, that individual would be able to say that he or she had not left the store and intended to purchase the merchandise. There is a great deal of clarity needed on this issue.

This particular bill reminds me of a provincial bill passed a number of years ago in the Manitoba legislature. It was called the good Samaritan bill.

I was the seconder of the bill. It was a Liberal Party initiative by Liberal leader Jon Gerrard, something he had advocated for a number of years, and we were ultimately able to get it passed.

I say that because a lot of people would make the assumption that if there is a vehicle accident and a good Samaritan assists an individual involved in this emergency situation, by trying to help someone, that good Samaritan could be sued. That particular bill tried to provide clarity. Much like Bill C-26, which would provide clarity.

It does make some changes, much like the good Samaritan bill. Ultimately it reinforces the idea that politicians are listening to what the people are saying and living up to the public's expectations. I think we will find a great deal of support for Bill C-26. In good part, it just makes sense.

I would like to make reference to a few stories. In Winnipeg North, the area I represent, crime and feeling safe on our streets is likely the number one issue, very close to health care. People want to feel safe. People have a right to feel safe and secure in their communities, their streets and their homes.

Like many members of the House, while knocking on doors during election campaigns, quite often I would hear examples of a citizen who felt threatened. We hear on the news about an individual store owner who has tried to protect himself or herself or the merchandise.

I wanted to reflect on stories I have heard and which connected with me because of the manner in which they came about. One of them was from a woman who lived in a house around Arlington Street, one of the core areas of Winnipeg North. She indicated to me that when the sun goes down, she does not feel safe to leave her own home. She does not feel safe to open the door and go outside to her own yard. The way in which that woman expressed herself stuck with me.

When I was in a 55-plus seniors' block after a town hall meeting, a gentleman asked me if I had ever heard of the concept of walking around with two wallets. When I asked him to explain, he said that in case an individual were mugged, the individual would hand over one wallet, and the other wallet would contain his or her identification and money.

When I reflect on those two incidents, it highlights how important it is for me as an elected official to ensure that we do what we can to provide that very basic level of comfort for the citizens of Canada to feel safe in their own communities. I would like to think that people should feel comfortable enough, no matter what their age, to walk out of their homes, no matter at what time of the day. That is a feeling that many generations have experienced. It is a fundamental right we need to work toward.

Individuals should not have to feel that they are going to be mugged when they go for a walk down a commercial or residential street. That raises a flag for me. I take it on as an issue of great importance because we want to try to make a difference.

Two other stories come to mind. This is where public opinion comes in. People will say, “Yes, that's a wonderful story”. This one involves someone I know personally. He is now 70 years old. At the time of the incident he may have been 68 or 69. He was out for a walk in the community of Maples where he does quite a bit of walking. He was approached by two rather large individuals in their late 20s or early 30s. As they got closer, he could tell there was some sort of substance, drugs or alcohol, involved. They approached him very aggressively. They started to rush at him and he believed that he was going to be mugged. This wonderful gentleman grabbed the one individual and lifted his one leg to propel the other individual. I guess he squeezed too tight which caused the individual in his arms to pass out. Then he faced the other individual, who looked at him, saw the other guy on the ground, and turned around and took off. I have heard the gentleman tell that story on several occasions, one to one and in a mall. It made a lot of people feel good that we have a senior with the ability to protect himself.

Another story was in regard to a local store owner. This gets right to the bill itself. This store owner was robbed. She was asked to help out with some ice cream and as she bent over to pick it up, she was stabbed in the neck. Fortunately, it was not fatal. As they were youth, instead of trying to chase them, she knew who they were and she went to the local police. She was able to ensure that those individuals were arrested.

I talk about those latter two stories because we have to be able to use common sense. When we pass Bill C-26, an important part of that bill is the issue of being reasonable. We have to recognize that it is very dangerous, if we are conducting a citizen's arrest, to confront someone who has committed a criminal action. We do not know to what degree the individual is going to respond. I have had many discussions with law enforcement officers. They say that if we are being robbed we should surrender whatever it is that is being asked of us. By doing that, we are decreasing the likelihood of incurring personal harm.

I have had the opportunity to talk to individuals who have been robbed at knifepoint, when a knife was put to their throat. One individual was very candid. He was scared because he thought the individual who had the knife was completely losing it and was going to cut his throat because he did not know where he was and just wanted to see money. He could see panic and fear in the individual who was robbing him.

Fortunately, the criminal left the scene after the person handed over the money. However, this person had the common sense to evaluate, much like the lady who was robbed in the store. In all cases, people have to use common sense and not feel they have to be heroes in order to protect property. That is one of the concerns that we have with regard to this particular bill.

We passed the legislation and want people to feel comfortable in knowing that they can conduct citizen's arrests. I gave the example of the individual who leaves the store and halfway down the block the store owner catches up. This bill would enable that store owner to recover the property, conduct a citizen's arrest and not worry about being charged. That is a positive aspect of the bill.

The concern that many individuals have with this bill, whether it is members of the chamber or law enforcement officers, is that we are not trying to tell the citizens of Canada that this is something they have to do. What they have to do is use discretion. Police officers are well-trained individuals and know how to conduct an arrest. They can anticipate the type of reaction they are going to get if they make an arrest. For the most part, average people do not know what is going to happen if they approach someone and say, “You have taken merchandise from my store, and I want you to give it back” or if they attempt to conduct a citizen's arrest. They do not know if in fact the individual has a concealed weapon, for example, and how they would react to that. When a store is robbed or someone is assaulted, most people would like the victim not to be made a victim again by attempting to do something that maybe he or she should not do.

That said, when circumstances allow someone to conduct a citizen's arrest, whether it is because of a robbery or in defence of someone who is being attacked or something of that nature, it is most appropriate to have a law that protects that individual. It is important that we protect individuals' rights to defend themselves. To that degree, Bill C-26 provides clarity for our courts and judicial system so that when people are being threatened with bodily harm, they have to have the right to protect themselves with reasonable force. They have to have the right to protect themselves. This is where Bill C-26 has great value, because it provides clarity to our judicial system. It tells our courts that under certain circumstances a person has the right to protect himself or herself from bodily harm or to protect his or her property from being taken or damaged.

For the most part, that legislation has a common sense approach in dealing with these issues. Because of that, we see that it has the support of the public as a whole and of political parties, generally speaking. I understand there are some concerns, but for the most part I believe members will vote for the bill. The Liberal Party's position has been to support the bill.

[Ève Péclet, NDP, La Pointe-de-l'Île, QC]

Mr. Speaker, I wish to inform you that I will be sharing my time with my colleague from Compton—Stanstead.

This bill would amend the Criminal Code, in particular subsection 494(2) on citizen's arrest, self-defence and the protection of property. My speech will mainly focus on citizen's arrest and self-defence.

The amendments would make the legislation more flexible. For example, they would allow a person to arrest someone without a warrant within a reasonable time. Often, as In the case of a number of the examples provided today, a person is attacked, may not necessarily fight back immediately, but may do so subsequently. It will be up to the courts to decide what is a reasonable time based on the circumstances. The legislation provides the courts with a framework for making decisions.

The second part concerns self-defence. In committee, the NDP proposed nine amendments to the bill; only two were accepted and seven were rejected. Even though the NDP would have preferred that all nine amendments be accepted, it recognizes that the law needs to be amended and that the bill addresses certain shortcomings and updates the legislation. For that reason, the NDP members support Bill C-26.

It is important to mention—in case the government is listening—that the NDP had proposed an amendment in order to add a subjective aspect to self-defence and to include situations of spousal abuse. This amendment not only included spousal abuse, but also cases of 18-year-olds who still live with their parents and who are abused by one of their parents or a member of the family and have been for many years. This might include any situation where a person has a history of violence.

Battered woman syndrome often comes up in the courts. However, this syndrome is not necessarily recognized. A person who has been a victim of repeated acts of violence might perceive matters incorrectly when in a violent situation. Their reaction to their attacker might be unpredictable.

It is important to know, when we are talking about spousal abuse, that the attacker—the spouse, the husband, or whoever—will not necessarily expect that reaction. I am also thinking about the situation where an 18-year-old might want to protect his mother from being attacked by his father. Someone who is raised in a violent setting might have an unexpected reaction to a relative or loved one who commits an act of violence.

The proposed amendment asked that the court assess whether, in the person's eyes, the person's actions were reasonable in the circumstances. In some situations, the court might take into account this type of history. Including this in the legislation provides a framework for this type of situation. This principle was created through jurisprudence and might differ from one province to another or one judge to another.

Hence, the interpretation is really based instead on evidence and testimony. In certain cases, the fact that it is not included in the legislation may, perhaps, be damaging to certain victims. In fact, I am talking about victims. On several occasions, women who have simply sought to defend themselves against their spouses have themselves been accused of assault. As the member for Gatineau mentioned, we have even seen cases where people no longer wish to intervene. I remember a case in Quebec, for example, where a person dove into the river to save somebody. However, the person who was rescued got injured in the process of being removed from the river and sued the rescuer for assault and battery.

Simply including this in the legislation will give victims of crimes and people seeking to defend themselves the assurance that they themselves will not be prosecuted for battery or assault.

In fact, an historical context is really important here because in several sections of the Criminal Code, there is an objective component that deals not only with assault and battery, but also the intention to hurt somebody. In the case of assault causing bodily harm, the person must have had the intention of causing bodily harm. Bodily harm is identified, but so too is the intention behind it. In self-defence, the issue of intention is not relevant. For example, a victim of domestic violence who takes a pot and hits her attacker on the head with it did not intend to inflict a wound, but rather to defend herself.

I think that this is really important. There are several organizations that share this opinion, one being the Canadian Bar Association. I read in its recommendations, which were based on its review of the bill, that it proposes that the clause be amended to read “the act committed is reasonable in the circumstances as perceived by the accused”. Perception therefore plays a very important role.

The government’s amendment is slightly different to ours. The NDP nevertheless succeeded in having an amendment passed that requires the court to consider the personal situation of the person who used self-defence. The wording is, however, not as precise as what the NDP proposed.

For example, in a situation where two men fight, self-defence is often more difficult to prove. However, let us consider someone who is 18—I often use this example—and has grown up in a violent household. Every day, he sees his father beat his mother and one day he decides to stand up to him, because his mother refuses to defend herself.

In my opinion—and I hope that the government hears this—it is important to be precise about this kind of amendment. Often, the courts need legislators to guide them in the decision-making process. Legislator must take their role seriously and provide a legal framework for these kinds of situations.

I am not criticizing the bill. I am simply proposing some potential improvements. It is a step in the right direction. We proposed nine amendments. We will amend the Criminal Code in the hope that we might continue to improve it in the years to come.

[Olivia Chow, NDP, Trinity—Spadina, ON]

Mr. Speaker, hard-working store owners trying to protect their own property should never be punished as criminals and the Criminal Code should not provide opportunities for that.

Since the David Chen Lucky Moose case, which I will go into a bit more, there was another instance in my riding. On Bloor Street, close to Euclid Avenue, there is a very nice restaurant called Maroli, which is owned by Mr. Naveen Polapady. Recently he faced multiple assault charges after confronting an apparent thief trying to steal his property.

I will not go into long detail as to what occurred during this incident, but his restaurant had been repeatedly broken into. He had called police. That did not have much impact. He felt the police had not been able to protect him. In the instance there was a struggle between he and the apparent thief and a noxious substance was thrown at the thief. It was a spice called masala. Some of my colleagues may know this noxious substance. It makes very good chicken. It is quite unbelievable that this spice could be called a noxious substance. Mr. Polapady was charged with assault.

Obviously, the law needs to be clarified and changed. Hard-working restaurant owners, such as in this case, should not be punished for trying to protect their restaurants.

The case of David Chen, owner of the Lucky Moose, occurred on May 23, 2009. He had been robbed quite a few times. The Lucky Moose is in my riding in Chinatown in downtown Toronto. His store is a very popular place where a lot of people shop.

A security camera showed that Anthony Bennett, a thief with a 32-year criminal record dating back to 1976, stole $60 worth of plants, which are called money plants, from Mr. Chen's store. Because the thief was not able to carry as many plants as he could, he came back an hour later to try to steal some more. He admitted that was what he wanted to do. Four or five were not enough. He wanted more.

Mr. Chen, after calling the police many times that past year, finally had it. He gave chase, caught the fellow and held him in a van. One could see bruises on Mr. Chen's body because Anthony Bennett had punched him. He was held and then police arrived four minutes later. Mr. Chen was charged with four charges: assault, kidnapping, forcible confinement and possession of a concealed weapon.

What was the concealed weapon? It was a box cutter, which any grocery store owner would have. They have to cut open cardboard boxes in order to get to the apples and oranges in those boxes. He carries a box cutter with him. He never used it and was not prepared to use it. He just had it because he was a grocery store owner. He was charged with possession of a concealed weapon.

As for forcible confinement, he wanted to ensure the police would come and arrest this person. Citizen's arrest is all about that. However, he was charged with kidnapping and forcible confinement.

The RCMP claimed that Robert Dziekanski had a stapler and that was an offensive weapon also. However, I digress.

Crown prosecutor, Colleen Hepburn, then offered to drop the kidnapping and assault charges if Chen pleaded guilty to forcible confinement and possession of a weapon. For this, he would receive an 18-month suspended sentence and a criminal record. Mr. Chen refused, and I am glad he did. The kidnapping and possession charges were dropped anyway. One of the reasons I suspect they were dropped was because it entitled the defendants to a jury.

By the way, Mr. Chen was not the only one charged. His cousin and his nephew, who assisted him, were also charged. It caused a tremendous amount of grief in the extended family. Mr. Chen spent a night in jail. His wife was worried sick.

The kidnapping charge was dropped. I think maybe the prosecutor was a bit worried that if there were a jury trial, Chen's peers would do the sensible thing and find everyone not guilty. Therefore, the two remaining charges were supposed to be heard in October by a judge sitting alone.

One might ask, what happened to Anthony Bennett? He received 90 days' jail time, reduced to 30 days on the condition that he testify against David Chen, which he did.

What actually happened? The Criminal Code allows a citizen to arrest someone if caught committing a crime. It is a law that goes back to ancient times. Since then, surveillance cameras have been invented, so instead of a storekeeper standing guard all day, we have security cameras.

I have been in the Lucky Moose many times. Mr. Chen had installed large numbers of security cameras. Any reasonable judge would modernize the concept of citizen's arrest, including in Chen's situation, and accept camera evidence as sufficient grounds for later arrest. However, the act now states that one must arrest a person while he or she is committing a crime. If people are arrested inside the store, they have not actually committed the crime yet because they could say they were about to pay. If they do not pay at the cash register, which is right by the door, and leave the store, by that time they are outside, which means the owner would have to give chase. This is what David Chen did. However, because it was after the actual crime being committed, the Criminal Code allowed police to arrest him.

The result was a lot of emotional and financial hardship. The case finally went to trial after a long time. By October 29, 2010, a year and a half later, the judge finally found David Chen, his cousin and his nephew not guilty. However, this was after a huge amount of money was spent on lawyer fees.

Given that the profit margins in these stores are extremely slim, David Chen did not ask for it, but the community came together, had fundraising banquets and drives to help him pay his lawyer fees. The community also said that the law did not protect hard-working store owners and that it must be changed. There was a petition with 10,000 signatures on it.

The Minister of Citizenship, Immigration and Multiculturalism promised some time in 2009 that the Conservative government would take action. One year later, nothing happened. I then introduced a private member's bill, which I termed as the Lucky Moose bill. Actually the moose was not that lucky on May 23, but I called it the Lucky Moose bill. The bill would have allowed for a flexible interpretation that, as long as the citizen's arrests were done within a reasonable amount of time, the store owners would be entitled to make them.

Unfortunately, nothing happened in the fall of 2010. I tried to push my private member's bill forward. It was on February 17, 2011, that the Prime Minister promised to introduce a government bill.

It is unfortunate it has taken so long. The bill passed first and second reading, but died when the election was called. Therefore, I am quite happy that another version of it, Bill C-26, which is very similar to my original Lucky Moose private member's bill, is now before the House at third reading. I hope in a few days the bill will pass the House of Commons into the Senate for approval and become law. It cannot happen soon enough.

Amending the Criminal Code would only assist in a certain way. To a certain extent it would clarify the law. At the justice committee, there was a diverse group of witnesses, including the Canadian Convenience Store Association, the Elizabeth Fry society, the Association of Professional Security Agencies, Quebec law association, the Canadian Bar Association and the Canadian Police Association. They all agreed that this bill was good, but there were some flaws in it.

Our critic introduced nine amendments. Two of the amendments were successful and seven, unfortunately, were not. I really regret that. We did manage to get a related amendment passed, which would require a court to consider the relevant circumstances of the person, the other parties and the act. The second amendment would place a greater onus on the courts to consider the history of the relationship between individuals.

There is a great need for different sections of the Criminal Code to be updated. Even though at the end of the day seven of the amendments of the New Democrats were defeated, we still believe the bill will give an adequate update to legislation and that is why we support it.

My colleague is right in that we should also look at other issues connected to the case. We need better community-based policing. A store owner should not have to wait so long for the police to arrive. There needs to be much faster response time by police officers and they need to know their own community so they are familiar with the challenges some of the smaller store owners face. They also need to understand who are the regulars in the community who commit these crimes over and over again.

If we have community-based policing, then there would be a regular number of police who would become familiar with the neighbourhood. By and large, a lot of the people who are stealing are from the neighbourhood. The store owners who suffer from these kinds of offences and are victimized have by and large been in the community for a long time. They own small shops and cannot afford to hire private security guards, which is why they occasionally, unfortunately, resort to citizen's arrest or self-defence.

If the police had a much faster response time, then people like David Chen would not have to take the law into their own hands. When the charges were finally dropped and he was asked by the media whether he would do it again, give chase and perform a citizen's arrest, had he known what would happen, Mr. Chen said, “No, I would probably wait for the police to come”.

I think 99% of store owners would probably give that kind of response. They would rather have the police come to deal with a criminal offence. The problem is that there is not a faster police response time.

On the other side, we have a person like Bennett, who was living in the community and is not anymore. He was not able to get into treatment programs initially, maybe in the late 1970s or early 1980s when he started committing crimes because he was addicted to drugs.

I do not know whether he has any mental health issues, but I do know that a lot of these criminals who commit theft and break and enter are addicted to drugs, and others have mental health issues, and yet we have a system in Canada where we do not have sufficient mental health treatment programs, especially within the communities.

If people have access to drug treatment or mental health programs, they can get clean and are able to start again. However, once they come back to the community, because there is not a community-based program to support them where they live, some of these folks end up reoffending, end up being hooked on drugs again and end up committing petty theft, victimizing the local store owners.

That is why the NDP believes that aside from amending the Criminal Code, aside from helping hard-working store owners to protect their own property, we really need to be smart on crime. We need to find some ways to have better community-based policing. We must have community-based treatment programs, drug treatment and mental health support, because if we do not do that we will end up throwing a lot of people in jail who will come out and reoffend over and over again. People like Naveen Polapady, a restaurant owner, and David Chen, a grocery store owner, will continue to be victimized.

To conclude, I am very happy this bill is finally in front of us for third reading. I hope it will pass without any problems and that the Senate approves it, so that at the end of the day David Chen and others can feel that justice is on their side, not against them.

[Elizabeth May, Green, Saanich—Gulf Islands, BC]

Mr. Speaker, I thank my hon. colleague for Newton—North Delta. I think she put very well the concerns one would have in looking at a bill that expands the access to citizen's arrest. As a matter of fact, she made a point that I had previously made at second reading, which was that the most appropriate response in our technological society to most events when one feels at risk or sees a criminal event is to take pictures or videos on cellphones and get them to law enforcement authorities, but not try to intervene in a situation that could become violent. We have too many innocent bystanders who have intervened in criminal activities and have ended up injured or worse.

Although some amendments were accepted, I think we have to be mindful that earlier in this session of Parliament, the routine for bills from first reading to third reading was that no amendments were acceptable. However, we have certainly seen a maturing in the committee process for some amendments, such as the one from the hon. member for Mount Royal, which significantly improves the criteria on the self-defence side of the act.

With regard to the acceptability of Bill C-26, I would ask if the hon. member for Newton—North Delta agrees that it would have been preferable to follow the advice of the Canadian Bar Association and leave subsection 494(2) of the Criminal Code alone.

[Candice Bergen, Conservative, Parliamentary Secretary to the Minister of Public Safety]

Mr. Speaker, I am pleased to speak to Bill C-26, which amends the Criminal Code to address the issues of citizen's arrest, defence of property and defence of persons.

In relation to the power of a citizen to arrest a person found committing a property-related offence, Bill C-26 would expand the permitted time frame for making an arrest. The existing power of arrest for the private citizen arises where the citizen finds someone committing an offence on or in relation to property. In other words, the person must be found actually in the process of committing an offence for a private arrest to be lawful. This is a limited power. The law does not permit an arrest even a short while after the offence was detected.

Business owners and other Canadians are right to be concerned with the narrowness of the power, the result of which is that citizens face prosecution for arrests they made even just shortly after they witnessed the crimes taking place. Bill C-26 addresses the limited nature of the power by expanding the existing rule to permit property owners or their agents to arrest persons they have observed committing property offences within a reasonable time after the offences were committed. The government is confident that the expansion of the citizen's arrest power would be interpreted and applied fairly and with due consideration for the various competing interests at play in an arrest situation.

Bill C-26 would also simplify the law relating to defence of property and defence of persons, which are in need of clarification. It is not the case that the law fails to give Canadians the authority they need to protect themselves. Rather, the problem is with the way the law is written. It is terribly confusing and difficult to understand what the parameters are for acting in defence of person or property. Briefly, Bill C-26 would simplify both defences so that Canadians could understand the rules that govern their ability to defend themselves, their families and their property. The police would also be better able to understand and apply the law at the scene of the crime and, as a result, would be better able to judge whether charges are warranted or not.

Canadians are rightly concerned about many reported incidents of charges being laid against Canadians who were doing nothing other than trying to defend themselves, their homes and their property. Our government is equally concerned. However, charging and prosecuting decisions are a matter of responsibility for provincial governments, not the federal government. The most Parliament can do is simplify and clarify the law of these defences, so the police and provincial crown attorneys can more easily and fairly apply them, and that is precisely what Bill C-26 would do.

The main component of the proposed new defences can be simply stated. In the case of defence of a person, did the defender reasonably perceive that he or she or another person was being threatened with force or actually being assaulted? In the case of defence of property, did the defender reasonably perceive the property he or she peaceably possessed was or was about to be interfered with, such as by someone taking, damaging, destroying or entering property without legal entitlement? In both types of cases, did the defender respond for the purpose of protecting him or herself or another person from force or for the purpose of protecting the property in question from interference? Finally, in both types of cases, did the defender act reasonably in the circumstance?

The justice and human rights committee passed a number of amendments to the self-defence provision. All the amendments modified the subsection of the defence that provides a list of factors for the court or jury to take into account in determining whether the actions of the accused were reasonable in the circumstance. One amendment clarifies and expands the opening words of the subsection. Another adds the notion of physical capabilities to the factor that speaks of the relative age, size and gender of the parties. The third adds a new factor that concerns any history of communication or interaction between the parties. Overall, each of these changes improves the proposed new defence.

I trust that all members will support this bill, which makes the defences more simple and clear and modestly expands the citizen's arrest law to provide flexibility for variations in the circumstances. Where a situation calls upon Canadians to take necessary and reasonable steps to stop crime and protect people and property, the law must clearly protect them from a liability.

I also want to note that, for instance, the expanded power we are talking about would come with its own special safeguards. For the arrest to be lawful, the person making the arrest must reasonably believe it was not feasible for the police to make the arrest themselves. This limitation would prevent what some may think are instances of private security agents deliberately delaying an arrest for illegitimate purposes, such as to collect additional evidence against a suspect. The existing duty upon any citizen who arrests another person to deliver that person as soon as possible to the police will also prevent vigilantism and abuse.

The concept of reasonable time also contains its own internal limitations. Whether an arrest was made in a reasonable time after an offence would be determined based on all the relevant facts and circumstances in each case. From case law that interprets similar phrases in other criminal law contexts, we can safely anticipate that these facts and circumstances are likely to be relevant to such a determination, including the length of delay, the reason for the delay, and whether the delay resulted in some kind of unfairness to the arrested person.

Again, this is a necessary bill that would clarify the act and make it a positive step forward for all Canadians. Therefore I urge all members to support this important legislation.

[Françoise Boivin, NDP, Gatineau, QC]

Thank you, Mr. Chair. I apologize for being late, but my colleague and I participated in the debate on Bill C-26 and we have been running around.

Mr. Storseth, thank you for being here to talk about your bill. It has caught my attention for some time now. Ever since we started talking about it, we have realized that it is not so simple. We keep going back and forth between various protections that we want to provide. I am an advocate for freedom of expression. It is very important to me. I have spent my life on the radio and on TV, so for me, freedom of expression is a fundamental concept protected under the Charter and I am well aware of that. But, at the same time, I have always known that it is our responsibility to understand that each right can have limits that we set as a society. So it is always a question of finding the right balance.

I don’t think anyone around this table is in favour of hate speech, whatever the extent may be, and I don’t believe that such is the intent of your bill. As I said, once again, it is a matter of finding the right balance.

Mr. Sandhu raised a point that interests me and that would be worth exploring a bit further. I have been a lawyer my whole life and I am going to explain how I see the issues related to the Charter and to human rights under the Canadian Human Rights Act and under current provincial charters, such as the Quebec Charter of Human Rights and Freedoms. As a lawyer, when people came to my office, we could sometimes end up with circumstances that might have led to various types of legal situations. That could entail criminal offences, civil remedies, and so on.

My concern with your bill is that we are taking away an existing remedy. I also met with various interest groups on the issue and some of them felt a certain degree of defeatism. We all pretty much share the same point of view on the issue. Cases before the Canadian Human Rights Tribunal—and in Quebec—sometimes take so long that it is discouraging. But a case that takes a long time does not mean that it is a bad case. Some people have opportunities and they sometimes take advantage of the system. Some people file all sorts of complaints for a yes or no. It has often been the case with section 13. Wouldn’t we be throwing the baby out with the bathwater if we passed your bill? Shouldn’t we work more on improving things and perhaps adding some powers? I think Mr. Moon referred to this bill and said that we should perhaps find a way to allow the Canadian Human Rights Commission to have a specialized tribunal that deals with abuses of the system and with those who sue for whatever reasons in order to protect the right to freedom of expression. At the same time, we have to keep a recourse that is completely different from that of the Criminal Code and that does not minimize the serious nature of the complaint. I don’t agree with your argument that, if it is at the criminal level, it is more serious. Some people don’t go to criminal court and they file civil suits because it is about the burden of proof.

I said a lot of things, but I wanted to share all this with you.

[Kerry-Lynne Findlay, Conservative, Parliamentary Secretary to the Minister of Justice]

Madam Speaker, I will be splitting my time with the member for Portage—Lisgar.

I am pleased to speak to Bill C-26, An Act to amend the Criminal Code (citizen's arrest and the defences of property and persons). Bill C-26 addresses a number of distinct but interrelated measures that give Canadians the power to respond to immediate threats to property and to persons, where the police are not able to be there.

In urgent situations where property or the safety of persons is being deliberately threatened, citizens may act to defeat the threat, including by resorting to actions that might otherwise amount to criminal conduct. The criminal law must recognize the ability of Canadians to take reasonable and measured actions to defend against criminal threats. More specifically, Bill C-26 addresses the law of citizen's arrest and the defence of person and property.

These three measures already exist in our law, depending on the circumstances and motivations of the person in any given case. They operate to shield individuals from liability for any of their actions that are otherwise criminal, precisely because in the particular context those actions are aimed at defending vital interests or apprehending wrongdoers.

However, all three sets of laws are in an imperfect state. Bill C-26 aims to improve each of the powers to ensure that Canadians and the justice system itself can more easily and more fairly assess the appropriateness of defensive emergency actions. The better the law sets out the conditions for legal emergency action, the fewer Canadians will find themselves charged and prosecuted for defending themselves against true criminals.

Today the defences of self-defence and defence of property are set out over nine provisions, with each defence having multiple variations that apply in slightly different circumstances. There is no need for variations covering different cases when they are all based on the same general principles. Further, the variations cause immense problems in court. Even before that, they complicate the ability of police who arrive at the scene to determine whether charges should be laid.

Parliament's duty is to ensure that laws are clear and simple. That is what Bill C-26 does for self-defence and defence of property. The new laws can be summarized quite simply. In the case of defence of property, a person should not be held responsible for a criminal offence he or she commits if it is a reasonable response taken for the purpose of protecting property in his or her possession from a reasonably perceived threat of it being taken, damaged, destroyed or trespassed upon. In the case of self-defence, a person should not be held responsible for a criminal offence her or she commits if it was a reasonable action taken for the purpose of protecting himself or herself or another person from a reasonably perceived attack by another person.

The proposed new defences in Bill C-26 will capture the essence of the current laws but in a much simpler way. The new laws will clearly and simply set out the conditions for defensive action. Self-defence is particularly important. It arises much more frequently than the defence of property, and it can provide a defence to murder. Because of the central place of self-defence in our criminal laws and reduction in the detail that is now present in the law, Bill C-26 goes an extra step. It proposes a list of factors that the courts must consider in determining whether the actions a person took, assuming that he or she reasonably feared an attack and acted for defensive purposes, were reasonable in the circumstances.

What is reasonable in one case may not be reasonable in another. Everything comes down to the facts and circumstances of each case. For instance, shooting someone in the leg may be a reasonable reaction if the person were threatening to kill someone, but it would not be reasonable if the person were threatening only to step on someone's toe. This criteria must therefore be determined flexibly.

However, a number of factors are common to many self-defence cases. The bill refers to some of these in a non-exhaustive list which is designed both to provide guidance to judges and juries, and to signal to the courts that they should continue to apply existing case law.

Factors on the list include whether any party had a weapon, the nature of the threat the person was facing, and whether the individuals involved had a pre-existing relationship, especially one that involved violence or threats. Proportionality between the threat that was averted and the harm that was caused is always going to be a relevant factor, and so is also on the list.

Following the testimony of a number of witnesses, the committee made several changes to enhance and expand the list. One such change modified the opening words of the clause to make it clear that the judge “shall”, not simply “may”, consider all relevant factors. The committee also clarified the factor that speaks to the size, age and gender of the parties by adding a more general idea of physical capabilities.

Finally, a new factor was added that refers to any previous communication or interaction between the parties, which is broader than the factor that speaks about a relationship between the parties.

The new defences are drafted so as to be easy for Canadians to understand, and so they should also be relatively easy for police to assess and juries as well, if charges are in fact appropriate. Canadians would understand that they would only be protected from liability where they genuinely act to protect property or person. Taking revenge against someone for past actions would not be excused.

They appreciate that they are not free to cause unlimited harm just because there is a threat. On the contrary, they must stick within socially acceptable standards of behaviour. With the passage of Bill C-26, the law would finally come to reflect these fundamental rules that Canadians already know.

Bill C-26 also would make a modest extension of the existing power of citizen's arrest in cases of property crime. Right now people can only arrest others if they find them committing an offence. This means that an arrest would be unlawful if it were committed just a few hours after the crime was witnessed, even where arrest at the time the crime was committed was not possible or was unsuccessful, for instance, because the suspect successfully got away.

The current law is too limited. Allowing people to arrest within a reasonable time of having witnessed the crime seems more practical. Law-abiding citizens and business owners should not become criminals just because their attempt to bring someone to justice was a little bit late.

To address this problem, Bill C-26 allows for arrest to be made not just when the crime is found in progress but also within a reasonable time afterwards. It would still be necessary for the arresting person to have observed enough of the crime to be confidant that it was committed. In addition, if the arrest were made later, the arresting person would have to turn his or her mind to the possibility of the police making the arrest instead. In every citizen's arrest situation, the arrested person must be turned over to the police as soon as possible.

All these requirements give our government confidence that this modest extension would not result in vigilante or other inappropriate or abusive behaviour.

Those who commit crimes against property should know that they are at risk of arrest, not just on the spot but also within a reasonable time of their offence, and those who have property stolen from them or have been otherwise criminally damaged should know they are entitled to participate in bringing those who wronged them to justice where the police are not able to do so.

I urge all members to support these important law reforms.

[Irwin Cotler, Liberal, Mount Royal, QC]

Madam Speaker, I welcome the member for Gatineau as justice critic for the New Democratic Party. We have worked together in committee on this bill and on other matters of common concern. I welcome her expertise and experience in this regard.

I am pleased to participate in the debate on Bill C-26 at third reading. While I have often taken issue with the government's approach to criminal justice, I do support the principle behind the bill, which would simplify and update the Criminal Code both with respect to self-defence and defence of property.

As I noted during debate on the bill previously, the current Criminal Code provisions on these matters are complex and judges have noted that the law at present is as confusing as it is confounding.

In particular, the Criminal Code contains four provisions on the issue of self-defence and six defence of property provisions. The legislation we are debating today would simplify these provisions into two Criminal Code sections, one on self-defence and one with respect to defence of property.

I am a long-time supporter of law reform, and during the period that I was minister of justice and attorney general I called for a comprehensive and principled approach to law reform in our country. We need a comprehensive review and simplification of the entire Criminal Code, which is long overdue, and I have stood in this place before to regret the fact that we have yet to embark on such a comprehensive and principled approach to law reform.

Some of the government's actions have taken us away from an approach to principled and comprehensive law reform. I refer, among other things, to doing away with the Law Commission of Canada, which was a principled instrument that assisted the House and me when I was minister of justice and attorney general of Canada with regard to a principled approach to criminal law reform, as well as, regrettably, the elimination of the court challenges program. That program supported access to justice and representation on matters, including those that dealt with principled approaches to criminal law reform. We are missing that instrumentality as well.

Therefore, I hope the bill signals a perspective shift in the government's approach to criminal law, namely that it will support sensible approaches to criminal law reform and to the simplification of the criminal law and move us away from what has been an ill-founded focus not only on punitive and incarcerative approaches to criminal justice, but in a legislative approach that is organized around an ad hoc response to the criminal justice case du jour rather than, as I said, a comprehensive and principled approach to the overall issues of criminal law reform. This would allow us to revisit the notion of the introduction of newer mandatory minimums or enhancing existing mandatory minimums, notwithstanding the fact that the evidence has been clear with respect to the fact that such mandatory minimums do not serve as a deterrent, are ineffective, end up being prejudicial and have a disproportionate prejudicial impact on vulnerable groups in our country, let alone the manner in which they may end up prospectively in breach of rights protected under the Charter of Rights and Freedoms, the 30th anniversary of which we celebrated just last week.

Bill C-26 would be a useful addition to the criminal law in the manner in which I indicated before, and will proceed again to elaborate upon. It would provide greater clarity for prosecutors, judges and juries presented with cases that involve self-defence or defence of property. It would also help private citizens understand the situation in which they may defend their person or property. In this regard, I look forward to the government's plan to educate citizens on this area of the law in an effort to ensure that vigilantism, of which concern has been expressed in debate this morning and heretofore, is not encouraged by the passage of this legislation.

Certainly there might be some who may see this bill as an opportunity to take the law into their own hands. Again, I reiterate that citizens should always seek the assistance of our trained and uniformed emergency services personnel when possible, rather than risk their own personal safety or engage in ill-advised approaches in vigilantism.

One thing that should be made clear to Canadians is that it is not as though without this bill there would be no right of self-defence or the right to make a citizen's arrest. Both exist as a matter of the common law. Self-defence has existed in that regard for centuries. Both have now been codified as statute. Indeed, even if we did not have a statutory basis for these elements of our criminal law, we could nonetheless embark upon the legislative reforms before us today.

As we are now at third reading, I would like to address three particular issues with respect to this bill. The first is that of private security firms, which took up a good deal of necessary discussion and debate before our Standing Committee on Justice and Human Rights. The second is with respect to the bill's use of “gender”. The third is the amendment proposed by my colleague, the member for Saanich—Gulf Islands.

Simply put, with respect to the first issue, that of private security firms, the concern is that these individuals are private citizens who by virtue of their employment often take on police-like functions. Arguably, the bill can serve to enhance their powers and this may not necessarily have positive consequences in that regard.

As the Canadian Bar Association stated in its submission:

We believe that anything which could unnecessarily expand the (perceived) mandate of private security officers and ordinary citizens to make arrests should be avoided.

Indeed, the CBA goes on to express its concern that the legislation might “encourage unjustified arrest by private security personnel, not subject to public oversight”, noting that:

Such personnel often lack the necessary range of equipment or adequate training to safely and lawfully make arrests in a manner proportionate to the circumstances, in the regular course of their duties.

This was a recurring issue during our committee hearing. I do believe the government should be quite mindful of this issue, both in terms of its efforts to educate individuals about the ramifications of this bill but also with respect to the potential introduction of legislation specific to security personnel, such as to ensure proper training and understanding of the law.

I noted earlier in my remarks with respect to the anniversary of the Canadian Charter of Rights and Freedoms that we must ensure that these security personnel are well-versed in the protections inherent in the charter and court pronouncements in relation to such protections, such as to minimize the risk of their violation in respect of persons believed to have engaged in criminal acts.

As a final point in this regard, the concern was raised by two law professors who appeared before the committee that a consequence of the bill would be to make security guards, to use their words, “de facto police officers” by allowing them to delay before making an arrest. This too is a point that I will address more specifically in a moment within this context and the related context in matters of delay.

The second issue I want to address briefly is that of gender, which has been addressed as well in debate this morning, which this bill lists as a factor that can be considered by a judge in assessing the reasonableness of a self-defence action.

At committee it became clear that one of the things this legislation was meant to address was the problem of battered spouses syndrome, a defence linked to the current provisions of the Criminal Code. In this regard, I am pleased that all parties joined in accepting my amendment before committee to create a specific factor “any history of interaction or communication between the parties to the incident”, which, as my colleague for Gatineau pointed out, may also help victims of cyberstalking and cyberbullying.

While I am hopeful this will be enough to ensure that battered spouses are protected, I must reiterate what I said during previous debate about the inclusion of gender in criminal law legislation, namely that it opens the door to the resurgence of a series of myths and stereotypes, which have, regrettably, sometimes undermined our criminal law in areas such as sexual assault. Simply put, I am hopeful that no attorney or judge will advance any arguments that rely on inappropriate or prejudicial gender stereotypes, be it the weak, defenceless woman or the overpowering man, to determine the reasonableness of an action thereby suggesting that a woman should not have fought back or that a man should have fought back harder. Put another way, its continued presence in the statute implies that there is some fundamental difference between capacities of men and women to protect themselves, and I am not persuaded that gender is the determinative factor as opposed to other factors in the statute such as physical capacity or whether the person was armed.

The final issue I would like to address, and with this I draw to a close in the matter of substantive critique of this legislation, is the issue of allowing for a delay before an arrest is made. This point is indeed problematic, as evidenced by the many proposed NDP amendments at committee and indeed the proposed amendment by the Green Party this morning. I sincerely hope this issue can and will be taken up by the Senate as it is not immediately evident that the current language of the bill that one “make the arrest within a reasonable time after the offence is committed” is sufficient to guard against arbitrary detention or other situations whereby, for example, someone is followed across town by a security guard attempting to effectuate an arrest.

As Professor George Rigakos of Carleton University put it:

Bill C-26 therefore will create de facto private police officers, not in name, but in function, as they will use discretion, investigate, and build a case based on their new-found authority to delay arrest. I'm quite confident that this is not the intent of the committee.

Certainly this would not reflect my own intent and I am hopeful that this will be addressed in the other place. Indeed, the Barreau du Québec's submission on this point was quite instructive. It noted:

...the fact that a citizen's arrest must be made “within a reasonable time” after the commission of the alleged offence leaves the way open for a possible abuse of power. Any arrest includes elements of unforeseeability arising from the use of the force that is needed in order to make an arrest, peaceful though it may be. By definition, an arrest implies the use of force: a person who makes an arrest must physically control the person and restrict their movements and, if necessary, may use reasonable force to compel the person to submit to their authority. When the police make an arrest, they are identified by their uniform or otherwise, and persons arrested by police know that the police are entitled to make arrests, even if they believe the police are in error in their case, and police are required to inform the person arrested of the grounds for the arrest and of their rights. The police are trained to make arrests, and even with their training and skills, arrests sometimes go wrong, even where the persons involved are not criminals. A member of the public does not have the training and resources available to police forces. The power of arrest is an important power that must be exercised in accordance with the law, and the rights of a person who is arrested must be respected.

Again here we see the issue of constitutional rights, potentially and prospectively violated by those making use of this section without being fully aware of the juridical context in which citizen's arrest properly operates. I hope this matter will be addressed in the other place.

Another issue that can be addressed in the other place, and with which the committee had difficulty as well, was how to balance objective and subjective factors in the determination of the reasonableness of a self-defence action. Certainly in the circumstances of a criminal act, one may perceive the situation differently from the clarity that is afforded by hindsight. I am not persuaded that this bill often strikes the right balance in this regard. I appreciate the submissions from numerous groups that raised this concern. I trust that needed refinements can be made in the other House.

While I have not addressed much of the defence of property provisions in this legislation, I do support the principles behind them. We are all aware of the Toronto incident, to which reference has been made during the debate this morning, that gave rise to this bill. Generally, while it is not advisable to legislate on one particular case, and we have sometimes burdened our criminal law by legislating only as a result of one particular case, the overall principles behind this bill are reasonably acceptable and serve the overall aims of prospective law reform.

While I do still have some reservations, as I have outlined in the course of the discussion and my remarks this morning, and while I still hope some modifications may be made in the other place, I look forward to the simplification and reform of what are now overly complex and cumbersome Criminal Code provisions, with respect to both self-defence and defence of property. I hope that this might herald a comprehensive approach to a principled criminal law reform of other cumbersome and complex provisions in our Criminal Code, which we continue to amend on an ad hoc basis in response to a particular cause du jour, but which need a comprehensive and principled approach, not only for the simplification of our criminal law but to making it into a more principled approach that could be better understood by all actors in the criminal justice system.

[Françoise Boivin, NDP, Gatineau, QC]

Madam Speaker, I had this thought: it is perhaps because I have had the benefit of participating in all the committee meetings, listening to all the witnesses, thinking things through, knowing what the Criminal Code looked like before, and seeing what has become of subsection 494(2). When I say that I am reasonably satisfied, it is because the bill does not make things worse.

If I had one comment to make to my colleague, who is also a lawyer, it would be to tell her to think of the bill in this light: it does not make section 494(2) worse in terms of citizen's arrest. It creates a number of criteria to which I have no fundamental objection. I do not think that it is awful; it is simply a little vague.

What does the bill mean where it says, “make the arrest within a reasonable time”? For a government that wants to replace judges more often than not, it is again a case of leaving it up to the court to decide what a reasonable time is and believing, on reasonable grounds, that arrest by a peace officer was not possible.

The wording is, notwithstanding, sufficiently serious given the types of cases that will arise and considering the fact that it has been confirmed that these are not situations that occur frequently. The fact that the bill also refers to “a person authorized by the owner” indicates that it cannot be just any old person. Once again, the other criteria must be met.

If we vote against Bill C–26 because it is not perfect, we will be depriving ourselves of an extremely important tool. I would like my colleague to think about that before it comes time to vote.

[Françoise Boivin, NDP, Gatineau, QC]

Madam Speaker, before beginning my speech on Bill C-26, I would like to mention that this is my first debate as the official opposition's new justice critic. I would therefore like to thank the leader of our party, the hon. member for Outremont, for the confidence he has placed in me.

I would particularly like to thank the hon. member for St. John's East, who has done absolutely extraordinary work on this file, as well as his entire team. Over the past few months, we examined Bill C-26 as a team.

I would also like to thank the hon. member for Trinity—Spadina. Those who have been following this issue know that she is behind Bill C-26. This bill addresses the famous Lucky Moose Food Mart case, which served as a wake-up call for members of Parliament who are now trying to determine how to resolve this problem.

I also extend my thanks to the Standing Committee on Justice and Human Rights, where we studied many bills, including Bill C-10 on law and order, which was very thick and had many amendments. I use the term “thick” in reference to the size of the bill and not the content. We also studied Bill C-19 on the registry. We looked at many files, but this was the first time, since I was elected on May 2, that I felt that there was co-operation and that the two parties and all the people around the table, no matter their political stripe, were truly trying to find intelligent solutions to the problems and serious issues raised.

This bill involves amending the Criminal Code, which has been in existence for quite some time and has been interpreted by the courts and the Supreme Court. It is not necessarily an easy task. The member from the Green Party pointed out a problem with citizen's arrest that was raised at the committee hearings. I will come back to that later in my speech.

Having said that, I hope that the members opposite will adopt this new way of doing things because the Standing Committee on Justice and Human Rights does not meet to engage in petty politics. We meet because we know that these laws will have a direct effect on the lives of Canadians. We discuss criminal acts that have an impact on the lives of people, whether they are the victims or the accused, who benefit from the presumption of innocence. As guardians of the charter, we must ensure that the legal provisions and amendments to such laws are made properly.

Let us come back to Bill C-26. What is it all about? This bill amends a few sections of the Criminal Code, especially on self-defence, whether in relation to people or their personal or real property. It is the main purpose of this bill. The other part concerns citizen's arrest in a very specific context, which was the starting point for the private member's bill introduced by my colleague from Trinity—Spadina.

The first part on the lawful defence of property and persons, especially self-defence of persons, had been requested by the courts for a very long time. Finding a way to amend the Criminal Code was not easy. Earlier, I asked the hon. Parliamentary Secretary to the Minister of Justice a question about balancing the objective and subjective criteria with regard to the reasonable nature of the force that is used in self-defence. I think people understand what self-defence is. When we think we are being attacked and our lives are in danger or we are going to be seriously injured, we defend ourselves. That being said, it must be determined whether the act of self-defence was lawful or not, what the provocation was, whether necessary force was used and whether the context was appropriate.

It is not obvious. Over the years and decades, since the Criminal Code of Canada was created, the courts have realized that it is not always obvious. Over time, as things have developed, in certain cases defences based on scientific or medical reasons have been used. Take the battered woman syndrome for example.

I remember when I was hosting a radio show some years ago and there was a murder in my region, in Aylmer. A woman had killed her husband with a gun. The entire region was outraged simply because for most people a murder is a murder. We finally learned the facts in the case and found out what had happened. The woman had been terrorized day after day by an abusive husband who beat her and sometimes held a gun to her head. It was atrocious. Nevertheless, people said that did not matter. To them, all the woman had to do was leave home, get out of there and her life would not be in danger, but can we really judge another person's circumstances?

The courts began to develop certain plausible, allowable defences and to extrapolate the criteria mentioned in the Criminal Code, but every time, they came back to us and said that it was up to us as legislators to clarify and tidy this up a bit. This has not always been easy, especially when talking about defence and provocation.

I practised a little criminal law early in my career. One day, a man walked into my office. I am not revealing anything, since no one could ever guess his identity. He was a rather short man and he had been beaten by a woman who was taller than him. He pleaded self-defence, while she maintained that he had provoked her. This gives you some idea of the cases that go before criminal courts. In that particular context, only the gender criterion might have been considered. Basically, we sometimes have an impression, a preconceived notion, that because he is a man, he cannot be abused, or that because a woman is very tall, she cannot be abused by someone shorter than her, and so on.

The courts were often frustrated by these kinds of situations. It was important that the criteria not be too stringent. That is more or less what the Canadian Bar Association and the Barreau du Québec said in committee. As the parliamentary secretary said, we heard from several groups, such as the Barreau du Québec, the Canadian Convenience Stores Association, the Canadian Association of Elizabeth Fry Societies, the Association of Professional Security Agencies—I will come back to this group, the Canadian Bar Association, the Canadian Police Association, as well as universities, lawyers and other groups.

What came up again and again, especially concerning self-defence and the criteria mentioned in section 34 of the Criminal Code, was the importance of striking a balance. There was some concern about the government's wording of some of the clauses and amendments to Bill C-26 concerning a better balance between these subjective and objective elements. For example, the Canadian Bar Association agreed with me in committee that this balance appeared to be lacking, which is dangerous. The bill seemed to emphasize the objective criteria, which could jeopardize defences such as self-defence based on battered woman syndrome, for example.

I want to point out right away that the official opposition did propose seven amendments to ensure a balanced approach. We proposed objective and subjective criteria to enable the trial judge who hears the facts of the case to determine whether actions were provoked, assess what happened between the two parties and analyze the whole thing.

We did not succeed in getting all of the amendments included even though they would have made the provisions much clearer. But we will see. People will have to adjust. We are hearing that a lot these days, particularly in Quebec. We will see how the courts interpret all of this and whether the bill is balanced. I am reasonably confident that the amendments my colleague talked about earlier will ensure that balance.

I want to make it clear that section 34 of the Criminal Code, as amended by the bill, starts out by saying that a person is not guilty:

34. (1) A person is not guilty of an offence if

[This means that all of the criteria must apply.]

(a) they believe on reasonable grounds that force is being used against them or another person or that a threat of force is being made against them or another person;

(b) the act that constitutes the offence is committed for the purpose of defending or protecting themselves or the other person from that use or threat of force; and

(c) the act committed is reasonable in the circumstances.

[This one, (c), is often problematic.]

(2) In determining whether the act committed is reasonable in the circumstances, the court shall consider the relevant circumstances of the person, the other parties and the act, including, but not limited to, the following factors:

A list of factors follows. We appreciate that the government agreed to include our amendment. We want to ensure that offences are analyzed based on the perspective of the person directly involved rather than on that of someone who was not involved at all. Sometimes, it is by putting ourselves in someone else's shoes that we come to know what that person saw and we can really understand the impact of his action.

The physical capabilities of the parties to the incident were added. As I mentioned earlier, to look only at size, age and gender could cause confusion. I know people who are only 5' 2'' who have black belts in karate and, let me tell you, they could do some damage to someone who is a sturdy 6' 4'' but who has never played a sport in his life. We therefore wanted to avoid this type of prejudice.

Paragraph 34(2)(f.1) refers to the history of interaction or communication between the parties to the incident. Some people have difficulty understanding what that means, but those who are very active users of social networking sites, who are involved in blogging and who talk to different people understand what this means.

I once had a written conversation with people I did not know. I did not even know where they lived. I must say that, at the end of that conversation, I had the willies. I hoped that those people did not live nearby because I was seriously concerned.

Since we have new technologies, we have to adapt to this type of situation. Sometimes, people can be terrorized by means of written messages or threats delivered in other ways.

Given the amendments that were made in this regard, I am confident that we have managed to find a balance. The courts will still have access to the committee's work and to the report, and they will be able to make informed decisions when they are called upon to interpret the new clauses on the protection of property, clauses 34 and 35. At least that is what I hope.

As I told my clients, those who came to see me, if we had a perfect knowledge of law and wrote perfect legal provisions, there would be no need for lawyers. Since laws are often drafted by lawyers, to date, I have yet to see a provision that is so clear and straightforward that there is no room for any interpretation. Likely, down the line, we will discover additional factors that should be added to clause 34.

With regard to the legitimate defence of property, as was expected by the legal community and the courts, no distinction is made between personal and real property. An attack on real property was always considered to be of greater consequence. If a person suffered an assault in their home or something like that, the courts tended to be a bit more strict in their assessment of the factors, when the person claimed self-defence.

In the case of the theft of a cassette from a car, we might say that self-defence was not necessary. We must always look at the concept of necessity.

I would now like to examine the most difficult part of the bill to understand: the amendments proposed by the government. I would like to point out that what I find the most worrisome is that the government has not accepted any suggested amendments at all.

The comment or the point I would like to make is as follows. Section 494(2) of the Criminal Code deals with citizen's arrest, which was the reason for Bill C-26. That is why we cannot withdraw clause 3 of Bill C-26, because it would completely gut the bill.

I am fully aware of the fact that there was the political will to amend the bill because of what Mr. Chen went through in Toronto.

These are the facts as we heard them. Mr. Chen was working at his convenience store when the store was robbed. A short time later, the shoplifter had the nerve to return to Mr. Chen's store. However, Mr. Chen recognized the shoplifter and stopped him before he had a chance to commit a second theft. The store owner, Mr. Chen, tied up the shoplifter and put him in a van—the only place he could keep him until the police arrived. Believe it or not, it was the store owner who was charged with forcible confinement, among other things. The justice system amazes me sometimes.

I worked in the media long enough to know how sensational this type of story can become across the country. The story made it all the way to Gatineau. That being said, legal experts have told us that notwithstanding Mr. Chen's case, the Criminal Code, as currently drafted, should have given plenty of latitude to the police, who could have chosen not to arrest Mr. Chen. This could have been resolved without charges being laid against Mr. Chen.

To ensure that this does not happen again, the government introduced Bill C-26. At the time, my colleague from Trinity—Spadina also introduced a very similar bill. I will read the proposed subclause 3(2):

(2) The owner or a person in lawful possession of property, or a person authorized by the owner or by a person in lawful possession of property, may arrest a person without a warrant if they find them committing a criminal offence on or in relation to that property and

(a) they make the arrest at that time; or

(b) they make the arrest within a reasonable time after the offence is committed and they believe on reasonable grounds that it is not feasible in the circumstances for a peace officer to make the arrest.

I am sure that the infamous reasonable grounds are going to be interpreted in all kinds of ways.

I have a few problems with this clause because when it says “or a person authorized by the owner”, it obviously refers to security guards, and that bothers me.

In committee, we heard from witnesses from security agencies. An entire sector of the economy collectively jumped for joy over this new opportunity. The guards said it was finally their turn to shine.

To their credit, I must say, they are already working in stores, but not in small convenience stores. It is not the Mr. Chens of the world who will benefit from this, but rather superstores like Walmart and Target.

What worries me is that some of them like to pretend they are police officers, as though they are replacing the police. However, the defendant must be able to demonstrate that no peace officer was available to make the arrest. We were told that, quite often, it was hard for police officers to respond immediately to a call concerning shoplifting, because it was not necessarily a priority for them.

We also need to think about rural communities. Personally, I am a city girl. We often forget that many people live in rural settings, where there is not necessarily a police officer posted on every street corner.

That is all I have to say about the notion of a reasonable time.

However, we were definitely convinced that defining the notion of a reasonable time would prevent the court or the judge from using their own judgment in that regard. With that in mind, even though we have some reservations and we are anxious to see what will happen with all of that, the NDP plans to support Bill C-26. In its current state, it already answers many questions people had, which the courts often referred back to us as legislators. In that context, we hope this will do what it is meant to do.

In closing, regarding section 494 and citizen's arrest, one thing is clear: the government committed to ensuring that convenience store managers know that it is not open season for them to start making arrests left, right and centre, without thinking carefully first. No one is asking or recommending that they do so. We must leave this up to the professionals, the people who have been trained to do so. Otherwise, there could be serious consequences, especially if someone makes an illegal arrest. That is all I have to say, and I now welcome questions.

[Elizabeth May, Green, Saanich—Gulf Islands, BC]

Madam Speaker, I thank my hon. friend for his presentation of Bill C-26.

Some members of the House will know that I had hoped to present an amendment to the bill this morning to deal with the section dealing with citizen's arrest and creating the new possibility of arrest within a reasonable time. This is section 35.3 of Bill C-26, which would seek to amend the existing Criminal Code subsection 494(2).

My question is on this specific point. The concern shared by many, but particularly put forward to committee from the Canadian Bar Association, is that this opens the door to a potentially greater role for private security forces instead of the police and that it creates the opportunity for people to go after someone long after the event. How is the average citizen to know what a reasonable time is? This opens Bill C-26 to considerable abuse.

I would ask my hon. friend why it was that we could not have deleted this one section that opens the door to some mischief that is not necessary for the overall purpose of the act?

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

Madam Speaker, I am pleased to be able to speak once again to Bill C-26, An Act to amend the Criminal Code (citizen's arrest and the defences of property and persons).

I would like to begin by thanking the justice and human rights committee for its work in studying the bill. The committee held six sessions that heard more than 15 witnesses from outside government. The committee heard from a number of associations such as several pan-Canadian groups including, among others, the Canadian Bar Association, the Barreau du Québec, the Canadian Convenience Stores Association, the Canadian Police Association, the Canadian Association of Chiefs of Police, the Criminal Lawyers' Association and the Canadian Association of Elizabeth Fry Societies. The committee also heard from a number of individuals including David Chen, a local criminal defence lawyer and several law professors.

The diversity of witnesses who appeared at committee reflects the fact that the proposals in Bill C-26, though only a few pages long, touched a long range of issues that are important to Canadians. The committee no doubt benefited immensely from hearing the perspectives of specific populations such as police officers, small-business owners and their families, private security interests and victims of domestic violence. The committee undertook a thorough and profound analysis of the legislation, which has implications not just for special populations but for all Canadians.

I would especially like to thank the committee and the witnesses who testified for their commitment to balancing the needs of victims of crime to respond to emergency situations on the one hand and ensuring on the other hand that the law discourages vigilante responses to crime and the escalation of violence and the abusive exercise of arrest powers. This is always difficult to balance, but at the same time we believe that members on all sides of the House should wish to see this balance struck appropriately.

The committee made several modifications to the legislation, which I will address shortly. I believe these modifications improved the legislation, and I would like to once again express my appreciation for the serious and professional manner in which all committee members approached these important and sensitive issues.

Members will recall that Bill C-26 proposes a responsible expansion of the citizen's arrest power and also includes a long-overdue simplification and clarification of the law of self-defence and defence of property.

With respect to the power of citizen's arrest, the expansion proposed in Bill C-26 is modest and limited. No one disputes the fact that arrests are primarily the responsibility of the police. However, in recognition of the fact that police are not always present when a crime is committed, the Criminal Code has long authorized citizens to arrest other citizens in certain specifically defined situations including in relation to a property offence. The critical aspect of the existing law is that citizens may only arrest a person they find committing a property-related offence at that very moment. An arrest made at a point later is not a lawful arrest and the arresting persons are therefore potentially liable to be criminally prosecuted for any of their actions that otherwise constitute an offence, such as an assault against the suspect. We know that sometimes this is not possible and so to avoid the unfairness of the law in treating as criminal the citizen who arrests another shortly after the crime was observed, Bill C-26 would modify the current law to allow the arrest within a reasonable time of that offence.

I know the committee did consider several motions to amend the bill to add additional limitations intended to prevent this sort of conduct. The committee did not agree to these proposals. This does not mean our government does not share the concern. Rather, it means we are confident that the proposals and the bill would not be construed or applied in this manner. The extended time in which arrest can be made would not be unlimited. It must be reasonable. This would allow, and indeed require, the court to inquire into the many relevant considerations. Most important among these would be the reason for the delay. The court could also inquire as to whether the delay had any particular detrimental impact on the arrested person.

Another relevant consideration would be the purpose of the law itself. In this context, the courts would be mindful that this would be a novel extension of an arrest power that is currently very limited. In interpreting it contextually, the courts would be in a position to constrain the extension in a manner that accords with its purpose. Whenever the court would find that the reason for a delay in making an arrest was inappropriate or otherwise unreasonable or that the delay caused an injustice to the arrested person or that it did not accord with the purpose of the law, the arrest could be found to be unlawful.

Furthermore, our government's confidence is bolstered by a safeguard that accompanies the expanded arrest power, which will further serve to limit the potential for abuse. This safeguard is a requirement that before the citizen makes the arrest he or she must reasonably believe that it is not feasible in the circumstances for a peace officer to make the arrest instead.

In other words, if an arrest is intentionally delayed for some particular purpose, it will be much more likely that the police should be called to the scene and make the arrest. If the police are not called and the arrest is made later, that arrest may be found to be unlawful on the basis that the arresting person could not reasonably have believed that the police were not able to respond. Taken together, our government is confident that these are reasonable and responsible amendments and that they should not unduly jeopardize the safety of Canadians. We urge all members to support them.

I will now speak briefly on the issue of the defence of person and property.

While the citizen's arrest reforms are fairly straightforward, even if they are somewhat controversial, the changes to the defences of person and property are more fundamental in that they completely replace the existing legal provisions with new and simpler ones.

The necessity to reform these defences stems from the fact that they are currently worded in an extremely complex and convoluted manner. In particular, our self-defence laws have been subject to decades of criticism by the judiciary, including the Supreme Court of Canada, trial counsel, criminal law academics, bar associations and the law reform bodies. Criticism has focused on the fact that the existing law is confusing and difficult to apply in practice. It is fair to say that the reform in this area is long overdue.

When the laws that set out the rules for emergency defensive action are confusing, we fail in our responsibility to adequately inform Canadians of their rights. Unclear laws can obviously complicate and frustrate the charging decisions of the police, who themselves may have difficulty reading the Criminal Code and understanding what is permitted. It is also extremely important. Self-defence can be raised by a person charged with murder. Self-preservation is perhaps the most fundamental entitlement any citizen may have, even more fundamental than the protection of one's property. It is essential that Parliament gets law reform in this area right.

Bill C-26 proposes a single new self-defence and defence of property provision that would be much simpler than the existing law, which provides for multiple variations of each defence depending on slightly different circumstances. The proposed new defences would reduce the existing law into its most fundamental elements, which are consistent no matter what the particularities of the situation are. We no longer need different rules for different circumstances. We only need one rule that is capable of being understood and applied in all situations.

I will now speak briefly to the issue of the defence of the person.

According to the proposed new law for defence of the person, people would be protected from criminal responsibility if the following three conditions are met: they have reason to believe that they or another person are being threatened with force; they act for the purpose of defending themselves or other persons from that force; and their actions are reasonable in the circumstances.

These are clearly appropriate elements for a new self-defence law. First, to be exonerated from a crime, people should have a reasonable apprehension of some kind of force. Second, their actions should be motivated by a defensive purpose. Self-defence is not a disguise for what is really revenge, for instance. Third, whatever actions are taken, if they are taken for a defensive purpose and in response to a reasonable apprehension of force, those actions should be judged to fall within the range of what a reasonable person would have done.

Most cases likely succeed or fail on the question of whether the actions were reasonable in the circumstances. This determination would be guided by the unique facts and circumstances of each individual case.

However, without limiting the nature and scope of factors that could be taken into account, the legislation does try to set out some of the more familiar and important considerations in a non-exhaustive list of factors. This list accomplishes several purposes. It is intended to signal to the judges that existing jurisprudence should continue to apply even though the elements of self-defence have been simplified. It should also assist judges in their duty to instruct juries about how to apply the law in a given case.

One of the most important types of factors has to do with an abusive intimate relationship between the parties to a confrontation. The watershed Supreme Court of Canada decision in Lavallee in 1990 acknowledged the difficulties juries can have in finding the behaviour of a battered spouse to be reasonable.

In particular, juries may not understand how battered partners might stay in abusive relationships or how they might come to predict future violence based on past experiences. If the jury does not understand how people in abusive situations can come to view their options, the jury is more likely to find their actions unreasonable and deny them a defence.

However, in the Lavallee case, the Supreme Court of Canada held that expert evidence can be called to provide an explanation as to why an accused did not flee when he or she perceived his or her life to be in danger. In this way the evidence can also assist the jury in assessing the reasonableness of the accused's belief about both the danger that he or she faced and the need to act as he or she did.

This type of case does not arrive often, but sensitivity to these situations is crucial. For this reason the history of the relationship between the parties, including whether there were prior acts of violence, is specified in the law as a relevant factor in the determination of whether the accused's actions were reasonable.

Other critical relevant factors include the nature of the threat and the response to it. For instance, whether the attacker threatened to break a finger or to kill; whether any weapons were present; and the relative physical abilities of the parties, such as their age, size and gender. So naturally, a petite elderly women and a fit young man may have different options available to them to respond to the same threat.

As part of its comprehensive study of the bill, the justice and human rights committee found that the list of factors could be improved in certain ways. It agreed to several amendments to the subsection of the legislation, all of which our government is in agreement with.

The first change was to the opening words of the provision. The original words read, “In determining whether the act committed is reasonable in the circumstances, the court may consider, among other factors...”. The committee agreed to changes to these opening words to say, “In determining whether the act committed is reasonable in the circumstances, the court shall consider the relevant circumstances of the person, the other parties and the act, including, but not limited to, the following factors”.

This change has several effects. First, it makes it clear that it is obligatory, rather than permissible, for the court to consider all relevant circumstances. This is an improvement in clarity. Second, it highlights critical factors, namely the circumstances of the accused who is claiming self-defence, the other party and the act itself. Our government appreciates the additional clarity.

The committee made a change to the wording of one of the factors. Factor (e) originally identified the size, age and gender of the parties to the incident. The committee agreed that the relative size, age and gender of the parties may often be relevant in determining whether a person's actions in self-defence were reasonable. However, based on representations from the Canadian Bar Association, the committee concluded that these factors will not always be determinative of physical ability. In an effort to be more clear, it amended this factor so that it now reads: (e) the size, age and gender and physical capabilities of the parties to the incident. Once again, the government agrees with this additional clarity.

The committee made one final change to the list of factors. It agreed to add a new factor, namely, any history of interaction or communication between the parties to that incident. I have already spoken to the factor that refers to the history of any relationship between the parties. The committee felt that this factor could well be interpreted narrowly to apply to longstanding, intimate relationships and so might not capture interactions that are more casual or infrequent, or involve any single incident, such as a single threatening email. The committee added the new factor to address this type of situation.

On the issue of defence of property, the proposed new defence of property would adopt the same basic structure as self-defence. All of the existing provisions would be replaced with a single, general test for defence of property that captures its essential components, while maintaining the same level of protection as the current law.

There would be three essential elements of the defence of property. First, the defender must really perceive that someone else is about to do, or has just done, one of the following: enter the property without being legally entitled to; or take, damage, or destroy property. Second, the defender must act for the purpose of preventing or stopping the interference with property. Third, the actions taken must be reasonable in the circumstances.

A precondition for the defence is that the property must be in the peaceful possession of the person when the interference takes place.

This term is part of the current law and will be maintained in the new law. It has been interpreted by our courts to mean that the defender of the property must be in actual physical possession of, or have control over, the property at the time of the threat or interference, and that the possession itself must be unlikely to lead to a breach of the peace and is not contested by others. This is the way in which possession must be peaceful. It must not be contested or risk violence or public disorder.

In closing, Bill C-26 clarifies and expands certain provisions which authorize Canadian citizens to undertake actions that would otherwise be prohibited where there is a real emergency involving either threat to property they possess or to the safety of persons.

It strikes the right balance between discouraging crime and confrontation on the one hand and permitting Canadians to defend their basic interest where no other options are available.

I urge all members to support the bill. The reforms are long overdue and represent a principled and measured response to complex situations.

[Peter Van Loan, Conservative, York—Simcoe, ON]

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

The House proceeded to the consideration of Bill C-26, An Act to amend the Criminal Code (citizen's arrest and the defences of property and persons), as reported (with amendments) from the committee.

Business of the House

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

Mr. Speaker, first let me acknowledge the important vote we had in the House last evening to approve this year's budget. Economic action plan 2012 is a low-tax plan for jobs, growth and long-term prosperity. Since July 2009, almost 700,000 net new jobs have been created in Canada. We are on track, and our budget seeks to achieve the same kind of long-term growth and prosperity.

Mr. Speaker, the House will adjourn this afternoon to celebrate Easter and Passover, followed by a pause to work in our constituencies. When we return on Monday, April 23, the House will have the sixth day of second reading debate on Bill C-31, the Protecting Canada's Immigration System Act.

On Tuesday and Wednesday, April 24 and 25, the House will consider report stage and third reading of Bill C-26, the citizen's arrest and self-defence act, for which I anticipate broad support.

Finally, on Thursday, April 26, we shall have the first allotted day, which will belong to the official opposition.

Justice and Human Rights

[Dave MacKenzie, Conservative, Oxford, ON]

Mr. Speaker, I have the honour to present, in both official languages, the fifth report of the Standing Committee on Justice and Human Rights in relation to Bill C-26, An Act to amend the Criminal Code (citizen's arrest and the defences of property and persons).

The committee has studied the bill and has decided to report the bill back to the House with amendments.

Canada Water Preservation Act

[Claude Gravelle, NDP, Nickel Belt, ON]

Mr. Speaker, I am honoured as the New Democratic Party critic for natural resources to speak to this legislation with respect to Canada's water resources. We have seen this legislation twice before in the House. We welcome the bill at second reading.

I know that many Canadians are interested in fostering the sustainable use of Canada's water resources and preventing the removal of water in bulk from major drainage basins in Canada. We know how essential water is as a resource for life, people and our planet. In many ways, water defines and distinguishes our country.

As a member from northern Ontario, my flights home to Nickel Belt and travelling around the north of this province remind me of the abundance of this resource and, equally, the importance of its safekeeping. We have in northern Ontario part of Lake Huron and all of Lake Superior. Moreover, there are numerous border crossings with the United States and joint water tributaries that remind me of the importance of good legislation to monitor and protect this resource.

New Democrats will be supporting this legislation at second reading because we want it to go committee to receive the scrutiny it deserves and to deal with several concerns that we believe need to be addressed. Among those concerns is the absence of any guidance to direct the Governor in Council in setting the definition of what constitutes a major drainage basin in the regulations. This is a crucial definition that, by and large, will determine the effectiveness or real power of this bill. Without the definition, we would talking about all or no drainage basin. If the definition chosen by the government includes none of the major drainage basin, the act could be rendered inapplicable.

We are also concerned that the act gives the government very wide regulatory powers, including the ability to redefine the scope of the expectations through regulations, as well as the ability to make regulations providing for any other expectations. These regulatory powers seem overly broad and could permit the government to rewrite the act using these regulatory powers.

Further, the prohibitions in the act appear to be limited to the removal of water in bulk through diversion, and would not apply to the removal of water in bulk via pumping of water into a ship or truck, for example. If we are to oppose bulk water exports, we need to ensure that the act covers all means of exporting our water.

Finally, this act contains an exception for manufactured water products, including bottled water and beverages, a large loophole that we believe is also worth examining at committee.

I commend the member for Lac-Saint-Louis for again introducing this legislation.

Canadians have had an interest in protecting Canada's water resources for decades, especially when it comes to the issue of bulk water exports. The NDP has always called for prohibiting bulk water exports. We believe that this should be a key component of a national water policy—something Canada does not have—that would establish clean drinking water standards, provide for rigorous environmental protection measures for water resources, and recognize water as a common right.

A number of major water diversion plans in water corridors have been proposed in the past 40 years. These corridors would have transferred considerable quantities of water from Canada to the United States. None of these projects got off the ground, for various reasons. However, this remains a possibility. We must pass rigorous legislation to counter such projects.

I have seen other precious resources in our ground mined and exported with too little regard for Canadian priorities and needs. That must not happen with our water.

This legislation before us today also calls to mind the NAFTA agreement and how it has long been considered a threat to Canada's water sovereignty.

On several occasions, the NDP has brought forward motions here in the House of Commons to protect our fresh water. In February 1999 after debate, the House of Commons adopted an NDP motion to place an immediate moratorium on the export of bulk freshwater shipments and inter-basin transfers. The motion also instructed the government to introduce legislation to prohibit bulk freshwater exports and inter-basin transfers and recommended that it not become party to any international agreement that compelled us to export fresh water against our will.

In that same year, 1999, the Liberal government of the day announced that it would consult the provinces and territories to develop a strategy that would prohibit the bulk removal of water from Canadian watersheds, whether for domestic purposes or export. Regrettably, the strategy did not address the trade issues and concerns posed by NAFTA, focusing instead on water protection through water management. There is a relative consensus that the Liberals' Canada-wide water accord, with its environmental focus, does not contain enough protection from bulk water export.

In June 2007, the House adopted another New Democrat motion calling for the government to initiate talks with its American and Mexican counterparts to exclude water from the scope of NAFTA.

We know that in 2010 the government tabled Bill C-26, which aimed to ban bulk water. The bill did not progress beyond first reading and, indeed, was quite a feeble attempt to ban bulk water exports. It actually left 80% of Canada's surface water unprotected, as it only contained a prohibition on the removal of transboundary waters and not a prohibition on the inter-basin diversion or transfer of waters into transboundary waters, which left the door open for water pipelines to be built, like those proposed in the 1990s. We also opposed that bill for not addressing statutory exceptions that permitted the export of bottled water or other beverages. In fact, the bill did nothing to address bulk water trade concerns.

We want the government to acknowledge that Canada's water resources need further protection with respect to NAFTA via negotiations leading to an agreement that excludes water from NAFTA as a commercial good. Water should instead be listed as a human right and we need an acknowledgement of our respective sovereign rights to manage water as part of the public trust.

New Democrats have a history of defending Canada's water. In both 1999 and 2007 the House adopted NDP motions instructing the government to take steps to better protect Canada's water resources, and we are urging the government to respect the intent of those motions.

We must get it right this time to genuinely protect our water. We know that an overwhelming majority of Canadians support a ban on bulk water exports. We need to ensure that Canada maintains control through both a bulk water ban and the protections offered by a national water policy.

Bulk water removal poses concerns not just for the Canadians' drinking water but also for the cumulative effects it could have on the ecosystems of our water basins and watersheds. Policy-makers should also consider issues of water consumption as well as population and economic growth.

Further, we need more study of the effects of climate change on Canada's environment, and water resources must be examined in that regard, in particular, drought and changing weather patterns. Our water resource policy should take that into account. Here I would note that residents in northern Ontario with homes or cottages along Lake Huron and Lake Superior have seen dramatic changes in the water levels of the Great Lakes. In some recent years they have been able to walk hundreds of feet on new beaches that were once under water.

Policy-makers should also consider issues of consumption, population and economic growth.

When I look around our new Parliament since the May 2, 2011 election, I see that the members elected cover an amazing seven decades in their ages. This new dynamic of intergenerational partnership reaffirms the need to pass forward-thinking legislation that recognizes that a healthy and ecologically balanced planet is the most important gift we can give to future generations of Canadians.

To do this, parliamentarians have the duty and obligation to ensure that they understand the environmental consequences of current actions on future generations. This includes acting as responsible stewards of our water resources.

[Kerry-Lynne Findlay, Conservative, Delta—Richmond East, BC]

In our view, the current wording as proposed is clear and is the best approach. The new defence of property provision in Bill C-26 is intended to clearly establish that the person is not guilty of an offence when the person acts to defend the property in accordance with the law.

Mr. Cotler's proposed amendment would characterize the defence as a justification, for the same reasons as given in relation to the same proposed changes to section 34.

We don't agree with this. There is nothing special about a justification defence relative to an excuse or other types of defence. We feel that a modern criminal law need not continue to use this terminology. It's clear that if the elements of the defence are present, a person then is not guilty of the offence.

[Françoise Boivin, NDP, Gatineau, QC]

Thank you, Mr. Chair.

This is further to the discussions we had on Tuesday with the witnesses who are here today. I want to clarify that the reasonableness of the act committed in the circumstances is perceived by the accused. We are simply making a clarification. I believe that addresses what the witnesses told us before. It removes any confusion.

Let us not forget something. There is an aspect of Bill C-26 that I like. I was not here when that incident occurred in the Toronto convenience store, the incident that may have led to the introduction of Bill C-26. I have been here since the new Parliament began, so after May 2, 2011. And I am very pleased to see that Parliament is finally reviewing certain sections of the Criminal Code that had not been subject to review for some time. Courts and judges have long been saying that certain components of the Criminal Code needed to be clarified.

I think that those who drafted these provisions did an exceptional job, which is not always easy under the circumstances. That is clear from the level of our debate. This is just one example of what could happen in court, with defence counsel. Anyone who has practised criminal law—our colleague Brian Jean has considerable experience in that area and will no doubt agree with me—knows that this is the kind of thing that happens in these situations. Commas get moved around, a few minor words get moved over to the right or left.

That is not what I want to do. I want to make sure that things are so clear that these types of questions do not come up. I simply want to repeat the comments that were made and the gist of the discussion we began on Tuesday.

[Françoise Boivin, NDP, Gatineau, QC]

I understand what my colleague is saying, but I think we need to consider clause 34 in its entirety. Clause 34(1) reads “ [a] person is not guilty of an offence if [...]”.

Then comes a series of provisions: 34(1)(a), 34(1)(b) and 34(1)(c). Our proposed amendment to clause 34(1)(a) would establish that the person “believe [...]”. Department officials were very clear about the fact that it was as perceived by the person in question. It is important to strike the right balance between the objective and subjective criteria. The element of reasonableness is already set out in clause 34(1)(c).

The person must believe. How can reasonable grounds be established from a person's perception? They may have a certain perception of the situation, but they still have to act on it. What does it boil down to? The person must act reasonably. Therefore, clause 34(1)(c) stays as is. I don't see why you are so concerned; the clause has to be understood as a whole.

Although some witnesses preferred to see no change, that approach would not address what the courts were asking for. Judges told us that a change was warranted. That is the very purpose of Bill C-26, for that matter.

At the same time, it is important to find the right balance between the subjective and objective criteria. To my mind, the reasonableness component is contained in clause 34(1)(c) of the bill. Clause 34(1)(a) addresses the perception of the person in question. By adding another requirement, whereby the perception must be reasonable, we may be imposing a heavier burden than the circumstances warrant.

[The Chair, Conservative, Dave MacKenzie]

I call the meeting to order.

This is meeting 25 of the Standing Committee on Justice and Human Rights, pursuant to the order of reference of Thursday, December 15, Bill C-26, An Act to amend the Criminal Code (citizen's arrest and the defences of property and persons). Today we are at clause-by-clause consideration. I understand there are a number of amendments being proposed.

Before we start, we'll have just a little housekeeping.

I understand that if the House decides to treat the Thursday before Good Friday as a Friday, we will not have a committee meeting on that date. I'm not sure that decision has been made, but if it does happen, just for planning....

[The Chair, Conservative, Dave MacKenzie]

Thank you.

I think we will bring this part to an end. I want to thank the witnesses, and I want to thank the opposition for allowing Mr. Wilks to ask questions.

Just so that everybody's up to speed, on Thursday we will go to clause-by-clause on Bill C-26. If we have time, which we may, we'll have the report on organized crime back and we can try....

Oh, the clerk says you'll get it as soon as we all get back. He has the new version in his pocket.

Mr. Goguen.

[Françoise Boivin, NDP, Gatineau, QC]

However, it does not change the lawmaker’s intention behind Bill C-26.

[Francis Scarpaleggia, Liberal, Lac-Saint-Louis, QC]

It reminded me of a case in New York, I think it was in the 1970s or 1980s, of a fellow on a subway, an innocent fellow, a bit of a nervous character, but perhaps he had the right to be nervous in the circumstances. He had a gun, and I think four or five people, gang members, or whatever they were, got on the subway train and they intimidated him quite seriously; he panicked and shot them. In fact, I don't know if he killed any of them, but some of them were paralyzed for life and so on. If I recall correctly, in the subsequent investigation, it turned out that these four or five guys were actually quite bad guys and they had been convicted for serious violent crimes and so on.

In the context of a law like Bill C-26, how would he be treated? I don't recall if he was found guilty of overreacting or what the conclusion was, but I think you are familiar with this case. How would he have been treated by the law in the context of Bill C-26?

[Françoise Boivin, NDP, Gatineau, QC]

Ladies, thank you for coming to help us before we move on to the clause-by-clause study, which will be carried out on Thursday. Hearing from the different witnesses has been extremely beneficial. It goes to show that this issue is not simple. Drafting these documents must not have been simple either. I would be surprised if anyone were fundamentally against the goal we hope to achieve with Bill C-26.

Considering what we have heard, I appreciate your comments on certain notions that were not entirely clear to me. I had to briefly discuss them with you this morning. I will set them aside because you have addressed them already.

However, I still have some concerns about the bill in light of some of the witnesses' comments. I am still unsure how my questions can be answered. They mostly pertain to citizen arrests and the fact that a new dimension is being added. I know that it all stems from a single case. We have all said that trying to resolve a legal problem based on a specific case could lead to difficulties. Be that as it may, the two are not mutually exclusive.

Clearly, it is a matter of making the arrest within a reasonable time. As a lawyer, I always struggle a bit with that kind of an issue. I do know that reasonableness is sometimes the most difficult consideration to interpret before the courts. That’s at the heart of the matter. Colleagues in attendance have talked about potential cases when it comes to reasonable time frames. We know that such questions will come up before the courts.

I would like to know whether you, as a Department of Justice expert, feel that it would be worthwhile to focus a bit more on reasonable time frames, to pre-set a maximum limit. Would it be beneficial to set a 48-hour time limit? The idea would be to avoid deficiencies of recollection three, four or five days later.

[The Chair, Conservative, Dave MacKenzie]

I will call this meeting to order. This is the 24th meeting of the Standing Committee on Justice and Human Rights. We are dealing with C-26, An Act to amend the Criminal Code (citizen's arrest and the defences of property and persons).

Today we have two officials from the Department of Justice at the table with us to help us get through the bill. There are other officials in the room if there are questions that need to be answered. We have Joanne Klineberg and Catherine Kane.

If you have some statements you wish to make to begin the meeting, please go ahead.

[Prof. George Rigakos]

If Bill C-26 passes, I'm not sure what kinds of constraints you can put on private security, because they are being imagined as private citizens. Then the question becomes what type of private security and in what capacity are you talking about? Are you talking about forensic accounts? Are you talking about investigators? Are you talking about...and under what circumstances? It becomes a very difficult thing.

The problem we have here, I think, is that we've inherited something that is based upon the idea of sort of the frankpledge system and everyone being responsible for their own policing, and the idea of police as a public good, and the notion of the private citizen as being the first defence against criminality and disorder. That's a 19th century notion and in fact actually it's a 14th century notion, if you go far enough back, that has made its way through the common law.

But what's not in the law is any recognition of the distinction between the private citizen and this massive industry called the private security sector. Until that is somehow resolved, until there is some legislative recognition of the important distinction between David Chen and Intelligarde International or some other aggressive parapolicing organization, these issues are going to have to repeatedly come forward.

Either the distinction can be made legislatively or it can be made by the courts down the road. So far the courts haven't made much of a distinction, to my mind.

[Irwin Cotler, Liberal, Mount Royal, QC]

In the time remaining, given that there's been a common theme here with respect to the private security sector, which is something that has concerned me right from the outset with respect to this legislation, and regardless now of your views on Bill C-26, would you have some specific recommendations regarding Bill C-26 and its application to the private security sector, in that there may now be lacunae in the law such that it doesn't address that issue? Do you have any specific recommendations on the assumption that Bill C-26 is going to pass? The question is will it pass with specific reference to private security guards or not? I'm asking if you have any specific recommendations that we might include in Bill C-26 regarding private security guards.

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

Thank you, Mr. Chair.

Thank you to all the witnesses for your input and attendance here this morning.

I'm going to start with a comment more than a question, but perhaps I might ask for your comment on my comment.

There appears to be, in my view, Mr. Chair, a misconception that Bill C-26 is inspired by Mr. David Chen's predicament a couple of years ago in Toronto. I think that's wrong.

In rural Alberta there have been a couple of very high-profile cases, when RCMP were not always readily accessible. There was a case in New Brunswick that was highly publicized. I'm not entirely familiar with the facts, but I know a firearm was involved. Similarly, in one of the cases in Alberta where a conviction was made, a quad--a four-wheeled recreational vehicle--was stolen, a chase took place, and firearms were involved. Ultimately there was a conviction and the individual went to jail--under those circumstances, I would have to concede, rightfully so.

My point is that I'm not sure that Bill C-26 is inspired exclusively by Mr. Chen. My question for all the panellists is that in light of some of these other more fantastic situations where individuals have tried to defend property—and in rural Alberta, off-property, and sometimes quite some distance from the property—is it not incumbent upon Parliament to provide some clarity to the citizens as to what their rights are to make arrests and what their rights are to defend their property?

I'll start with you, Professor MacDonnell. You probably know about that case in New Brunswick.

[Prof. George Rigakos, Professor, Chair, Department of Law and Legal Studies, Carleton University, As an Individual]

Thank you.

Members of the committee, thank you for this opportunity to speak to you today on these proposed amendments to the Criminal Code. I understand I only have a limited amount of time, so I'll make my comments as brief and to the point as possible. That's going to be difficult, given that I'm an academic, but I'll do the best I can.

I appear before you today as an independent scholar and as a member of the Canadian academy who has been studying public and private policing for almost two decades. In the limited time I have, I'm going to focus my attention on the proposed changes to the Criminal Code dealing with a private citizen's power of arrest and, more specifically, paragraph 494(2)(b), which will allow private citizens to make an arrest within a reasonable amount of time after the offence is committed if they believe on reasonable grounds it is not feasible in the circumstances for a peace officer to make the arrest.

I think the changes proposed in Bill C-26 amalgamating a series of awkwardly worded sections relating to defence of property and self-defence make sense and clarify what was already present in the Criminal Code, so I have nothing to add here.

I want to speak to you today about what I consider to be two problematic assumptions that seem to underpin the proposed changes to section 494, and then employ three scenarios to illustrate my reservations about these proposed amendments. I will then sum up with a recommendation.

There are two problematic working assumptions about the proposed changes I'd like to speak to directly. The first is that Bill C-26 is designed to help small store owners like David Chen. The second is that the private security industry is in need of clearer and more expansive arrest provisions in order to do an effective job, and that these proposed changes are in any case simply enshrining legislatively what is already common practice in an increasing challenging security environment. Let me deal with these each in turn.

Bill C-26, in my opinion, will rarely help small store owners like David Chen. Instead, it will almost exclusively benefit the private security industry. With respect to the beneficiaries of these proposed changes, I want to make it clear to the committee that the private security sector will not only be the primary beneficiary of these changes but in practical terms will likely be the only beneficiary. Quite simply, non-security employees rarely, if ever, make arrests. They don't have the know-how. They don't have the confidence.

Unfortunately, there is an absence of available statistics on who makes citizens' arrests, but I would be very surprised, from all of my experience, if even 1% of all such arrests across Canada on an annual basis were attempted by non-security personnel. In fact, to satisfy my own personal curiosity over the years—because I always do a lecture on the division between public and private powers of arrest—I asked my students how many of them had ever conducted a citizen's arrest. These are all policing students in policing classes, so you'd think they'd be a biased sample and more likely than most to do it. Over the last ten years or so, of 500-plus students, only one had made a bona fide citizen's arrest that was not related to their employment in some form. Many of them had made private citizens' arrests, but as agents of the landowner.

Associated with the belief that this bill would aid small store owners, proprietors of businesses, and landowners is the idea that police often charge private citizens if they have not effected an arrest "just right", and that, moreover, these private citizens are subject to considerable judicial scrutiny and will be held to account for a poorly executed arrest. The overwhelming predominance of case law, including that of the David Chen case, as it turns out, points to the opposite reality. The judiciary has bent over backwards to accommodate private citizens' arrests and has, except in the most extreme cases, done everything it can to allow arrests to stand even though they were likely unconstitutional.

Moreover, judges are quite likely to admit evidence collected thereafter, lest not doing so would bring the administration of justice into disrepute. Therefore it's important to keep in mind that these proposed changes should be more accurately understood, for all practical purposes, not as private citizens' powers of arrest but rather as private security officers' powers of arrest. That's my first point.

My second point is the private security industry does not need more expansive arrest powers. As the committee has surely heard by now, private security personnel outnumber the police by at least two to one in Canada, and, depending on how one calculates the numbers, that ratio could be as high as three to one. Criminological research since about the mid-eighties has pointed to the dramatic rise of private security employment across the globe. The trend line for Canada points to a crossover point somewhere between 1968 to 1971 when the private sector was at par with police employment and then began to overtake it.

Since then, not only has the relationship between the public and private sectors transformed quantitatively by virtue of ever-growing demand for private security personnel, but I think it has also transformed qualitatively with respect to what the private security now takes on and how closely interlinked it is with public policing compared to the 1960s. This growth and increasing overlap in function has happened without any significant change to the Criminal Code. Thus, I think the strongest case against any perceived need to expand the arrest provisions in the Criminal Code is precisely the success of the private security sector without them.

The second-strongest case against the perceived need to expand private citizen arrest provisions in the Criminal Code is the increasing and unchecked functional interrelationship between the public and private sectors. When I first started doing research on public and private policing in the early 1990s, you would be hard-pressed to find a single police executive who would publicly endorse closer ties with the private security sector. It seemed that it would bias the police or would undermine their appearance as neutral arbiters of the law. Today these connections are not only endorsed but have also become institutionalized in areas as disparate as public foot patrol, forensic accounting and fraud investigation, and even major event coordination and planning such as the recent G-20 in Toronto.

The Canadian public needs to take stock of these important alterations in private security provision before the Criminal Code is amended to legally enshrine what amounts to a significant expansion of private security guards' powers of arrest.

Let me now turn to a couple of scenarios that will illustrate my concern about what these amendments might mean.

Within the language of the current bill, it's quite likely that there will be many instances when various types of private security personnel, including nightclub bouncers, by the way, will delay arresting someone they find committing a criminal offence in relation to the property they are hired to guard. The reasons for the delay may vary, but they will most likely revolve around some resourcing concerns and the availability and responsiveness of the police. The bill, as it stands, does not stipulate what would be acceptable as a rationale for not arresting immediately, only that the private security guard may arrest at a reasonably later time.

Let's look at the first scenario. A person is wanted by the policy because a warrant has been issued for their arrest. The wanted man then proceeds to steal an item from a mall vendor. A mall security guard, having witnessed the incident and having reported the suspect's image on CCTV, decides to make an arrest at a later, more convenient date. In this scenario, by virtue of bestowing discretionary authority to the private security guard, we may have stunted a police manhunt.

Scenario two: A nightclub bouncer witnesses a criminal act but is unable to make an arrest because the drunken patron has fled the scene. By the way, this is not uncommon, especially in Halifax. Bouncers see the people they have just wrestled with the previous night at the mall the next day. In any case, the nightclub owner prefers his door staff to refrain from making arrests lest they be taken out of service in dealing with the police. The following morning, possibly only half a day after the original incident, the same nightclub bouncer sees the now sober man getting into his car in an underground garage where there is no cellphone reception. Based on the language of the bill, the off-duty bouncer, fearing the man will get away, and that it's not feasible for a peace officer to make an arrest, is within his right to make a citizen's arrest far removed from the original site of the incident and for what may have been a minor summary conviction offence.

Scenario three: A security company, alerted to a spate of recent thefts from a client's warehouse, sets up a sting operation using secret cameras, tagged merchandise, recording devices, and even the screened presence of security agents observing ongoing thefts. None of the company employees recorded stealing materials are arrested immediately. A few weeks later, having gathered all of the video evidence and drafted signed statements from observing guards, the client invites all of the workers to a meeting and conducts a mass arrest. They then alert the police, turn over all of the evidence and a van-load of handcuffed suspects.

My argument to the committee is that all of these scenarios would be legal and not unlikely, given the state of private security innovation and entrepreneurship, and given the language of the proposed amendments for section 494 of the Criminal Code. But note what's happened here. Not only are private security companies acting precisely like public police services, using discretion, conducting investigations, and then turning over evidence to a peace officer on a silver platter, but, by virtue of their ability to delay arrest for a more convenient time, private security guards are always on duty. They are, for all intents and purposes, acting like private police officers. Their authority is tantamount to that of a peace officer once they believe they have witnessed a criminal offence while guarding private property.

BillC-26 therefore will create de facto private police officers, not in name, but in function, as they will use discretion, investigate, and build a case based on their new-found authority to delay arrest. I'm quite confident that this is not the intent of the committee.

It is therefore my recommendation to the committee that the proposed sections of the bill dealing with defence of property be adopted as written, but that proposed amendments to section 494 be dropped, and that for the time being, the original language of this section be retained.

[Prof. Vanessa MacDonnell, Professor, Faculty of Law, University of New Brunswick, As an Individual]

Good morning.

My name is Vanessa MacDonnell. I'm a law professor at the University of New Brunswick Faculty of Law. I teach and research in the areas of criminal and constitutional law. This past summer I authored a paper with Mr. Russomanno on the changes being proposed to the power of citizen's arrest by what was then Bill C-60 and is now Bill C-26.

I'd like to touch on four points in my opening statement this morning. I would welcome questions from members of the committee on any of these points or on other aspects of the bill.

First, I'd like to talk about what I'd call temporal concerns with the changes being proposed to the power of citizen's arrest.

The existing law permits an individual to effect an arrest where that individual finds a person committing an offence. The arrest takes place immediately and in most of these cases there's no serious question as to whether the offence has been committed and whether the individual performing the arrest has the right person.

Once you start to stray from this paradigm, though, certain concerns arise: there's a higher possibility of a false arrest; the individual performing the arrest might have the wrong person, the wrong arrestee; and, the person being arrested may have no idea why he or she is being arrested and might resist arrest, either lawfully or otherwise.

These are all circumstances where, in my submission, we would want the police, rather than a private citizen, involved. There's actual police work to be done here. This isn't the kind of case where a thief is caught red-handed, for example, and there may be evidence to seize or an investigation to be conducted. In my view, in this category of cases, we've exceeded what the citizen can meaningfully do. In this respect, the expansion of the powers of citizen's arrest being proposed by Bill C-26 is concerning.

Second, it's important, I think, to highlight that the provisions related to defence of property that are being proposed in this bill are also relevant to our discussion of citizen's arrest. These provisions, like the existing defence-of-property provisions in the code, provide an individual with a defence in circumstances where he or she is defending property. So defence of property, and the self-defence provisions more broadly, provide some protection to an individual who uses force in performing a citizen's arrest.

Included in this broader web of protections are also provisions that protect individuals who use force to prevent the commission of an offence, and protection for individuals who take steps to prevent a breach of the peace. You can read about some of these provisions in the legislative summary for the bill that has been provided by the Library of Parliament.

But the point here is that there's a broad web of provisions that already provide protections to persons who perform citizen arrests. Again I would make the point that situations that fall outside the scope of this broad web of protections likely require the professional expertise of the police.

Third, the major beneficiaries of the expansion of powers being proposed by this bill are not actually small shop owners like Mr. Chen, but rather the private security industry. I'm sure that Professor Rigakos is going to speak more about this in his remarks.

Society is increasingly relying on private security forces as the first line of defence to a number of security threats. These forces are often highly sophisticated. They are well resourced. They police a range of environments and places.

The academic literature and the empirical literature suggest that where marginalized groups are being policed by private security forces, especially in low-income housing communities, there's a real potential for harassment, and the powers being proposed by Bill C-26 may exacerbate this situation. I think we should be very concerned about the liberty and equality concerns that arise when we expand the powers of private security forces, especially if we end up doing so sort of unintentionally.

This bill was really aimed at the David Chen situation and not, perhaps, at expanding the powers of private security forces more broadly. I would simply point out that, unlike police officers, there is very little in the way of regulation of the private security industry.

When we're talking about police officers, of course, their powers are constrained. They have only those powers that are given to them by statute or the powers they have at common law. They're also required to observe the limits of the charter in their duties.

This takes me to my fourth point, and that is the question of whether the charter applies to the actions of an individual performing a citizen's arrest. On this point, I'd just say that the case law, to date, is unclear about whether the charter applies when a person is performing a citizen's arrest. The Supreme Court of Canada has yet to rule definitively on this point. So there's no guarantee the charter would serve as a meaningful check on individuals performing a citizen's arrest.

Perhaps I'll stop there.

Thank you.

[The Chair, Conservative, Dave MacKenzie]

We will call to order meeting number 23 of the Standing Committee on Justice and Human Rights. We are meeting pursuant to the order of reference of Thursday, December 15, 2011, in regard to Bill C-26, An Act to amend the Criminal Code (citizen's arrest and the defences of property and persons).

Today we have three witnesses appearing before us.

You've probably heard from the clerk that you get a ten-minute opening address. I will let you know when you're down to nine minutes. It's nothing personal, but we'll cut you off at the ten-minute range.

You're free to start, if you wish, Ms. MacDonnell.

[Chi-Kun Shi]

Yes, I think absolutely that if there is more leeway as to the time maybe they'll say “This guy looks like somebody who stole from us, but we want to check our surveillance video.” Usually these shoplifters are repeat offenders, and they will be back, so they'll have this opportunity to do that.

I wanted to comment earlier on the concern about violence. It seems that the undertone is that if there's a potential for violence, let's not do it. I find it very interesting, because we actually, every day, do many things that guarantee violence: hockey, WWE shows. We pay money to watch violence. Crossing the road can get us killed. Driving is very violent and potentially very dangerous, yet we do it every day. It's a balancing act.

On balance, I think Bill C-26 starts to put a bit more value on the store owners' rights, not just to their property, but to their dignity. To be a victim of crime is an indignity.

[Chi-Kun Shi]

Thank you.

First of all, to take away that really unreasonable demand the current legislation requires—that they can only catch a shoplifter committing the crime—is a huge break. Because if one thinks about it carefully, that timeframe is infinitesimal. When the thief is in the store taking the goods, the act has not yet been completed, because he has the chance to pay for it at the cash. As soon as he leaves the cash, the act has been completed. I guess that's the infinitesimal moment: when the person is passing the cash. At some point, you can say, “Aha—he wasn't going to pay for it”.

It is totally unrealistic, and it's unevenly enforced as well. If you think about Mr. Cotler talking earlier about security guards, security guards always apprehend outside the store. By that time, the act has been committed. There are actually no rights to that arrest. Yet in that case, the police would never nail a security guard for an illegal arrest.

That's why we need Bill C-26 as a good start: to clarify. It is a break; however, I would submit that it is just a good start. I see in the language, as I say in my submission, such caution; there is such concern that these store owners would go overboard. The problem is that in that equation there is not sufficient attention, in my submission, paid to the concerns of what has been going on in these stores in the meantime, and that is rampant shoplifting.

Mr. Chen's case is such a dramatic demonstration of what happens when the law fails people: the store owners, until this proposed amendment, basically had both hands tied behind their backs and a huge stick over their heads. Dare you do anything.... Just let them take it and go: I've heard that on so many talk shows, with hosts and other people asking why he can't just let them take the plant, asking how it can be worth him having to struggle on the street, and saying that we can't have violence on the street.

My answer to that is that we send soldiers to Afghanistan: what do you think they do there? There are values that we believe are worth fighting for. It's okay to do it overseas, but we can't have a struggle on the street...? We'd rather let people steal from people the things that they work so hard for...? The potted plant, for a middle-class person, may be just something nice to look at on our patio in the summer while we sip our Pinot Grigio, but for Mr. Chen, it's food on the table and education for his children and clothes on their backs.

It is that sense of respect for and recognition of citizens' rights and their participation in the community that I think Bill C-26 has done a good job of starting to address.

[Chi-Kun Shi]

To the extent that private security guards are given any more power to arrest, then they should be subject to more restrictions--for example, the application of the charter. But if the security guards are not being provided with any more training that will elevate them to any special status, then I think they should be looked at more like citizens.

Again, Mr. Cotler, I think the issue is not so much whether it is a private security guard. The problem, as I see it, that Bill C-26 is starting to address is a fundamental issue of whether Canadians are going to be allowed more chances for self-determination and the fundamental right to participate and be an equal partner in the safety of their communities.

[David Chen, Owner, Lucky Moose Food Mart, As an Individual]

Good morning. Thank you for inviting me today.

My name is David Chen. I'm the owner of the Lucky Moose Food Mart.

Almost every day people steal from my store. Calling the police does not stop them. They are gone before the police get there. Sometimes the police don't have time to come.

Two and a half years ago, when I tried to stop a repeat shoplifter, I was told I was wrong. I was told chasing him was wrong, but he ran away when I asked him to pay for what he took. I was told tying him up was wrong, but he was hitting me and my workers. I was told putting him in my van was wrong, but he was kicking us. I was told I might be a bigger criminal than the shoplifter. I was told I was more dangerous than the shoplifter. I was in jail overnight. My wife was not allowed to see me.

I was very lucky that many Canadians supported me. The community raised funds to pay my lawyers. My lawyers worked hard and gave me good discounts, and the court set me free.

Even with so much luck, my family still has a hard time with the system. We spent time and money. We worried that I might go to jail, all because I don't want anyone to steal from me.

I know many people worry about shoplifters and store owners fighting on the street. I want to tell them we store owners don't want to fight; we just want to make a living for our families. When we have no choice, we want the chance to defend ourselves and what we work hard for. When we do, we need the government on our side.

I am just one of many store owners who are victims of crime. I want you to know that Bill C-26 is important to us. It means this government is listening to us and understands that we are victims.

Please continue to keep us in mind when you make laws.

Thank you for letting me speak today.

[Chi-Kun Shi, Lawyer, As an Individual]

Good morning, Mr. Chairman and members of the committee. Thank you for inviting me here today.

My name is Chi-Kun Shi. I'm a lawyer.

I spend most of my time practising civil litigation, far away from the criminal courts. However, in 2009, when I learned of David Chen's incident and the serious charges he faced, I felt that his case was one that raised issues not only about public safety, but also about fundamental Canadian values. I became involved in the public discourse.

In that process, I had the opportunity to speak to many store owners. I researched the proper roles of all three levels of government in the matter; debated the issues repeatedly on radio and television talk shows in both the English and Chinese languages; and gave numerous interviews to journalists of all media types, including international, national, and syndicated programs, as well as local college student newspapers.

From these discussions I learned that Canadians see the right to exercise citizen's arrest as intertwined with the fundamental relationship between Canadians and our government.

The proposed amendment to subsection 494(2) of the Criminal Code, before the committee today—that is, clause 3 of Bill C-26—is therefore an exercise in recalibrating that relationship and redefining the role of government in the lives of Canadians. It has fundamental implications.

The proposed amendment eliminates the current unworkable restriction that limits citizens' arrests to the very narrow window when the criminals are in the process of committing the crime.

In David Chen's case, the police relied on the contemporaneous restriction to deny David the availability of the citizen's arrest defence, and thereby flipped the essential elements of an arrest, any arrest, into very serious charges of kidnapping and forcible confinement. These charges were levelled against him as he arrested the shoplifter one hour after the crime was committed.

The proposed amendment before this committee will eliminate this scenario. It allows the store owners to make an arrest within reasonable time. However, it imposes other conditions, including the one that I will respectfully submit may not respond to the reality of life in a grocery store.

The proposed amendment stipulates that the citizen making the arrest must have found the criminal committing the offence in the first place, although the arrest could be made within reasonable time thereafter.

In practice, store owners rely on surveillance videos to determine, often after the fact, that the theft has taken place. As many of the shoplifters are repeat criminals, the store owners or their agents may receive the information of the theft through each other as they are often able to reliably identify these criminals.

Strictly speaking, information of that nature may not be sufficient to authorize a legal citizen's arrest under the proposed amendment, as it requires that whoever makes the arrest must have found the criminal committing the offence. As the consequence of an illegal citizen's arrest is so serious, the question one must ask is whether the amendment should be fashioned to provide the store owners more space between, on the one hand, doing a picture-perfect legal citizen's arrest, and on the other hand, suddenly becoming an alleged kidnapper.

Under the Criminal Code, even with this proposed amendment the stakes are very high for store owners who exercise their right to citizen's arrest. The benefits, on the other hand, are quite limited.

As David's case demonstrates, the Criminal Code, as implemented, imposes much harsher penalties on illegal citizens' arrests than on shoplifting. If we believe that the law encourages certain behaviour and discourages other, one can make the argument that the government's vision realized by our Criminal Code on the issue of shoplifting is one of acquiescence.

On the other hand, the government's vision on citizens' rights to protect their own properties is one of severe caution.

During many debates about what David's and other store owners' proper response to shoplifting should be, opponents of the right to citizen's arrest argued that store owners should call the police and then just wait.

As we all know by empirical data, anecdotal evidence, and indeed as admitted by police themselves, there are not enough resources for the police to confront the issue of property crimes on their own. So what these opponents are really saying to the store owners is simply to suck it up. Store owners who try to do anything else to protect their properties are taking the law into their own hands or committing vigilante justice.

In my view, until they've made a citizen's arrest, the law that day was in no one's hands but the shoplifter's. What the opponents have captured, though, in their view is the equating of citizen's activism with anarchy. To some extent the Criminal Code's harsh treatment of store owners reflect this view. Even these proposed amendments, motivated by the recognition of these store owners' fundamental rights to defend the fruits of their hard work, contain conditions that I submit reflect the government's unease about trusting Canadians to participate in the safeguarding of their communities.

The debate surrounding citizen's arrest is an opportunity to re-examine the role that every Canadian should play in his or her own surroundings and community. In Chinese, the word “democracy” is made up of two characters that mean “citizen” and “decide”: “democracy” means “citizens decide”.

These proposed amendments take a step towards giving Canadians more chances to decide and shape their lives. Perhaps some day the government will see fit to further amend the Criminal Code and trust Canadians with the right to defend themselves, where there are reasonable grounds to do so, without placing strictures that, as in David's case, turn Canadians defending their properties into serious criminals and turn career criminals into star witnesses for the crown.

I will always remember a store owner who told me that after he caught a shoplifter and waited for the police to arrive, he was more scared than the shoplifter of what the police might do. That is wrong. This proposed amendment is a good start to setting things right.

Thank you for your attention.

[Oliver Abergel, Member, Criminal Lawyers' Association]

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Thank you.

[The Chair, Conservative, Dave MacKenzie]

I call the meeting to order.

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

This morning we have three groups to appear before us.

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

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

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

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

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

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

Did I capture your theory correctly?

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

Thank you, Mr. Chair.

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

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

[Françoise Boivin, NDP, Gatineau, QC]

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

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

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

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

[Alex Scholten, President, Canadian Convenience Stores Association]

Good afternoon.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

[The Chair, Conservative, Dave MacKenzie]

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

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

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

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

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

Justice

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

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

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

[The Chair, Conservative, Dave MacKenzie]

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

[The Chair, Conservative, Dave MacKenzie]

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

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

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

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

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

Thank you, Mr. Chair.

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

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

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

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

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

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

A point of order.

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

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

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

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

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

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

Thank you very much.

My second question is also for Mr. Gottardi.

In Bill C-26, we are continuing to make the distinction between a criminal act and a criminal offence. It says that a person can arrest an individual caught in the act only if it is a criminal act and not a criminal offence.

Is it reasonable to think that the average citizen can make that distinction on the fly?

[Kerry-Lynne Findlay, Conservative, Delta—Richmond East, BC]

Thank you, Chair. Thank you to the witnesses who are here today to assist us. My question is for Mr. McLeod.

As I understand it, a security guard is usually privately and formally employed and is paid to protect property assets and/or people. I realize there are many variations of that job description. Security guards maintain a highly visible presence, and I assume that is done to deter illegal and/or inappropriate actions, by observing either directly or through patrols, for instance. You were talking about electronic surveillance and the modern technologies we have today to assist us when looking for signs of crime, fire, disorder, and that sort of thing.

Bill C-26 would allow security guards, as designated persons, to take appropriate action to prevent crimes from happening as long as they act reasonably.

I have a couple of questions. Should private security guards, in your view, be able to act, or should they just be reporting incidents back to their clients, employers, or emergency services, as appropriate? In other words, when security personnel are doing their jobs in the real world, what do you see as an appropriate limit between just reporting and actually acting?

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

First of all, thank you to the witnesses for appearing—those we see and those we don't.

My question is directed to Mr. McLeod. Of course, the reforms proposed in Bill C-26 allow property owners, and persons authorized by them such as security guards, to arrest persons they find committing a criminal offence, whether the offence is seen via technology or as an eyewitness. It authorizes them to make the arrest at that time, or within a reasonable period of time—you've spoken about that—after they have found the person committing the offence. Of course, the property owner or the security guard in question has to have reasonable grounds, under the circumstances, for not calling a police officer to come to the site. You've talked about how the overwhelming amount of incidents would dictate that perhaps a police officer can't be there.

With that in mind, how important is it to allow people authorized by property owners, such as security guards, to conduct citizens' arrests? You've talked about saving money with this and about the fact that the police cannot attend because of the overwhelming number of incidents. Can you give us some examples to illustrate that?

[Françoise Boivin, NDP, Gatineau, QC]

Bill C-26 doesn't change anything from what you're already authorized to do.

[Françoise Boivin, NDP, Gatineau, QC]

Thank you, Mr. Chair.

I'd like to thank all the witnesses who have joined us this morning.

Mr. Gottardi, I share the concerns of the Canadian Bar Association. I read your brief carefully. Anyone who has practised in the field would agree that these are not the easiest criminal provisions to read and understand, in terms of intent. But this is part of the everyday reality of crown attorneys, police officers, members of the controlling forces and defence lawyers. Everyone agrees that if everything were simplified and clarified, it would be better. But we need to be careful. If there's one thing I've learned as a lawyer, it's that simple legislative documents and lawyers aren't many. I haven't seen many in the course of my career.

We also heard from Mr. McLeod, of the Association of Professional Security Agencies. One of my concerns deals with citizen's arrests.

Mr. McLeod, according to the provision as drafted, I don't see how you could be involved closely or remotely in the arrest of someone without a warrant if you did not witness the incident. You aren't an extension of the person whose property was stolen. Is that how you interpret this provision? I felt like there had been a bit of lobbying, that you would be allowed to do a little more to lighten the load of the public authorities. But people from the police association told us that it should be left in their hands since they were properly trained to do this work.

I'd like to know what your position is with respect to Bill C-26.

[Eric Gottardi]

Yes, thank you.

I think it might have been a lot easier just to come to Ottawa to appear before the committee today. I apologize for not being there in person. I know that we're a bit late because of the delay, so I'll curtail my remarks a little so we can get straight to the questions.

I want to thank the committee for the invitation to present today the CBA's views on Bill C-26. As some of you may know, the CBA is a national association of over 37,000 lawyers, law students, notaries, academics, and judges. An important aspect of our mandate is seeking improvements in the law and the administration of justice. That's the perspective from which I appear before you today.

Personally, my capacity is as the vice-chair of the CBA's national criminal justice section. This section consists of a balance of crown and defence lawyers from every part of the country. I am a lawyer in Vancouver who does both crown and defence work.

The Criminal Code provisions concerning self-defence, defence of others, and defence of property have been the subject of decades of criticism and frustration for lawyers and judges, due to the multiplicity of code sections and subsections and many variations among their elements. Many high-profile cases in Canada have faltered on jury instructions regarding self-defence.

The CBA national criminal justice section has called for reform of these provisions of the code for many years—for over 25 years, in fact—so it's with great happiness that we see this bill coming forward with the proposed amendments to the law of self-defence. In particular, we support the bill's creation of two comprehensive sections concerning the defence of self and the defence of others, and indeed including the defence of property as well.

This bill represents an historic and significant step in the evolution of the law and, hopefully, the simplification of the law of self-defence. It's in light of that historical context and the likelihood that if this bill is passed, this iteration of the law of self-defence will remain on the books for many decades, that there are some small amendments the CBA proposes to help fine-tune the provisions contained in Bill C-26 that are related to self-defence.

Hopefully, we'll get into some of those details later as questions come, but in particular, those suggested amendments are set out in detail at pages 2, 3, and 5 of our submission before you today.

The second aspect of the bill is the expansion of the powers of citizen's arrest. It's that aspect of the bill that the CBA does not support.

We're concerned that the bill may encourage citizens who are untrained in arrests to risk their own personal harm and risk liability for wrongful arrests. We know that arrestees are more likely to resist citizen's arrests than arrests by the police, and ordinary citizens are less likely to have a knowledge of physical controls or tactical communication to deal with individuals who actually resist those efforts of arrest.

We're also concerned that the changes will encourage unjustified arrests by private security personnel, who are not subject to public oversight in the same way that police agencies are. Such personnel often lack the necessary range of equipment or adequate training to safely and lawfully make arrests in a manner proportionate to the circumstances.

So it's a dual approach that we have to the bill today. We're excited and happy to support the long-awaited amendments to the law of self-defence. It's a welcome reform. On the other hand, or in our view, the changes to the law of citizen's arrest are just unnecessary, and in fact may put Canadians at further risk.

Thank you.

[Tom Stamatakis, President, Canadian Police Association]

I do. Thank you, Mr. Chair.

I apologize for not being there in person today.

For those of you today who might not be familiar with the Canadian Police Association, we are the national voice for 41,000 of Canada's front-line law enforcement personnel. We represent police personnel serving in 160 police services across Canada, from Canada's smallest towns and villages to those working in our largest municipal and provincial police services, as well as members of the RCMP, railway police, and first nations police.

It's my pleasure to be able to speak to you today regarding Bill C-26. I would like to offer a few brief opening remarks in order to keep as much time as possible to answer any questions you might have regarding this legislation and the impact it will have on Canadian law enforcement personnel.

Obviously the December 2009 case of Toronto store owner David Chen showed that Canada's current laws regarding the right of citizens to effect an arrest in order to protect themselves or their property required some consideration. That being said, we should always take care to underline, particularly for the sake of public safety, the fact that the preservation of the public peace should always be the responsibility of professional, trained, and recognized law enforcement personnel.

I should note that before Bill C-26 was originally introduced in the last Parliament as the former Bill C-60, the Minister of Justice and his department consulted extensively with our association and other law enforcement stakeholders to ensure that our concerns were reflected in this legislation. We appreciate their efforts to reach out in this regard, and as always we look forward to further cooperation whenever it's possible.

With respect to this specific legislation, our association is generally supportive of the goals and methods contained within Bill C-26. I would like to take this opportunity, however, to outline a few brief concerns.

Obviously, law enforcement personnel are the beneficiaries of a significant amount of training in areas such as the proper use of force, methods of detention, and arrest powers, which average citizens are not privy to. Therefore, it's vitally important that we continue to educate the public that despite any changes to the powers of citizen's arrest in Canada, the first reaction people should have if they witness a crime being committed is to call the police and allow our law enforcement professionals to do the jobs they're trained to do.

We should also take care that any changes made within this legislation do not have the unintended consequence of broadening the current mandate of private security, particularly with respect to loss prevention in commercial settings. While I am sympathetic towards store owners and businesses that wish to minimize losses with respect to the very real concern of shoplifting, which costs us all in the long run, we must take care not to go too far in the pursuit of protecting property.

For instance, it can be tempting to believe that all shoplifters are teenagers committing a crime of opportunity. But factors such as the presence of accomplices or even, in the worst case, gang affiliation can lead to increased personal danger for private security personnel who try to effect an arrest. We definitely don't want to see a situation in which a citizen's arrest is made only to find the suspects' friends or accomplices returning for a measure of retribution.

In the end, property owners, shopkeepers, and businesses that are looking to prevent losses should take the basic steps necessary to assist law enforcement, including installing functioning and clear cameras where necessary, as well as quickly reporting any suspected activity to local police agencies, rather than looking to take the law into their own hands.

In summary, Bill C-26 does help clarify some of the situations in which it might be appropriate for a private citizen to act in defence of themselves or their property, but we must avoid any indication or implication that these actions should be a replacement for professional law enforcement personnel.

I do appreciate the opportunity to address you today and certainly welcome any and all questions you might have on how this legislation impacts our members.

Thank you.

[Kim Pate]

Okay. Well, I've cut it down, so hopefully we'll have a lot of time for discussion.

Our organization has long been interested in this work. In fact, we responded to the 1993 white paper the Department of Justice put out on this issue, as well as the 1998 Department of Justice review of the defences of self-defence, defence of others, and defence of property. We certainly have a position, which I've provided to the clerk, that is a position from that time and is more comprehensive than this bill, but I thought it might be of use to the committee members as you're studying the bill.

I will refer to a few of the areas in that brief and also, obviously, comment specifically on the provisions of Bill C-26.

I also want to say that I've had the opportunity to read the brief from the Canadian Bar Association. In substance, we are in support of most of the recommendations. In particular, we are in agreement with the notion that the subjective element of proposed subsection 34(2) needs to be enhanced.

In fact, we would suggest that there needs to be some discussion of some particular areas in terms of the issues that battered women in particular face, because it's an area where they have not always been able to avail themselves of the self-defence provisions. We think of some of the systemic issues that were highlighted in the Malott case by the Supreme Court of Canada and then picked up by Madam Justice Ratushny when she did the self-defence review of the cases of women who had been jailed for using lethal force and who had not had the opportunity to avail themselves of self-defence, despite the decision of the Supreme Court of Canada in Lavallee.

In particular, we are concerned that the subjective pattern of reasonableness needs to take into account issues like course of control, issues like the histories of violence and abuse that have existed, and also that the particular features of the accused's experience need to be part of the explanation and part of the consideration that the court would give, so should be included in the self-defence provisions.

We have some concern that it also be a charter-driven analysis, so that when someone is making a mistake or perceives an ongoing risk, that it be a charter-driven process. So things like hate crimes, like homosexual panic, cannot be invoked in those sorts of situations, and we have to be talking about not only subjective perspectives, but subjective perspectives that are equality based and protected by our charter.

We also would like to see in the provisions that relate to defence of property a clear indication that there's a value that life will take precedence over property. That isn't there. It's certainly one of the recommendations we made in 1998 and 1999 to the Department of Justice. We would reiterate that view: that in fact we need to ensure the value of life over property.

We also think there should be some analysis of the impact on indigenous peoples who are attempting to invoke the protection of their property—historic property rights—and certainly that's not reflected in the current legislation.

We are not in agreement with expanding citizen arrest areas because we are extremely concerned about the potential consequences of largely untrained individuals attempting to arrest and attempting to assess the scale of risk or the risk. We therefore are concerned about that. I'm concerned that in fact it might encourage a proliferation of private security interests, instead of the publicly accountable policing services whose responsibility it is currently to undertake arrests.

We also think that it may in fact be a concern for security companies and for others who are engaged in criminal justice work, in that it may in fact be perceived at times as requiring some sort of obligation. Certainly, there has been raised by police officers—as well as parole officers—a concern that an extension of this might be that there would be an expectation that arrests be undertaken by individuals whose job it isn't usually to do that, who would themselves in fact call the police.

We also think there should be clearly indicated throughout these areas that there's a duty to retreat on the part of individuals who are using force and to whom those who might try to use these defences would be responding, so again, it would be part of the charter-based analysis.

Those are, very quickly and briefly, our comments. We look forward to the perspectives of our co-panellists and to the questions from the committee.

Thank you very much.

[Kim Pate, Executive Director, Canadian Association of Elizabeth Fry Societies]

Mr. Chair, I do. Thank you very much.

And thank you to the committee for inviting the Canadian Association of Elizabeth Fry Societies to present this morning. As some and perhaps all of you are aware, our organization is composed of 26 members who are across the country and provide services that range from early intervention to prison assistance and community re-entry. Our members work with marginalized, victimized, criminalized, and institutionalized women and girls throughout the country. As some of you know, some of our members are in fact the only groups who work with our victimized women and girls and are the only victim services in some of their areas.

We present on Bill C-26 from this perspective. We and our members thank you for the opportunity to present.

I'll try to keep our comments brief, and I'd be happy to have discussion.

[The Chair, Conservative, Dave MacKenzie]

We'll call the meeting to order. It's meeting number 19 of the Standing Committee on Justice and Human Rights.

Today we have some witnesses appearing before the committee, dealing with Bill C-26, An Act to amend the Criminal Code . We have Ms. Pate here today from the Canadian Association of Elizabeth Fry Societies and Mr. McLeod here from the Association of Professional Security Agencies.

We have by video conference two witnesses, one from the Canadian Bar Association, Mr. Gottardi, and one from the Canadian Police Association. I'm not sure if we have both video conferences. We have a little technical problem at this point with the Canadian Bar Association's connection, so we have Mr. Stamatakis here from the Canadian Police Association.

Welcome to you all. If you have an opening address, we'd like to keep them to five minutes. I'll let you know when you have one minute left, and then we'll begin the rounds of questions from each side.

Ms. Pate, would you like to go first, if you have an opening address?

[Catherine Kane]

That conduct is I think still covered by subsection 494(1) of the Criminal Code, which is not being changed by Bill C-26. We're only changing subsection 494(2), which deals only with citizen's arrest in the property context, if someone finds someone committing an offence.

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

Thank you, Mr. Chair, and my thanks to the officials from the Department of Justice for their expertise with respect to this important matter.

Following up on some questions that Mr. Jean asked with respect to how broad a net Bill C-26 will cast in providing defences, I'm curious to hear your thoughts. In the existing law, as I understand it, self-defence is limited to justified acts of force. But if I could have you think outside the box, one could imagine a situation where an individual might have to take evasive action to avoid an attack, and in the course of that evasive action this individual might steal a car. That act would normally be illegal, but the person might have to do it in self-defence. I'm curious what your thoughts might be on the applicability of Bill C-26 in that type of situation.

[Pierre Jacob, NDP, Brome—Missisquoi, QC]

Good afternoon, Minister.

I have some questions for you on the consequences Bill C-26 is going to have on the work of private security agencies.

First, will the changes proposed in this bill affect the work of security agents? And moreover, by broadening the provisions governing citizens' arrests, are we not opening the door to possible abuse on the part of security agents? Finally, should there not be more restrictive regulations governing security agents in order to limit their powers, so as to distinguish between ordinary citizens and merchants?

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

I want to thank Minister Nicholson and the two witnesses, Ms. Klineberg and Ms. Kane, for having come to testify before us today. I am sure that your clarifications will make the bill more comprehensible.

Minister, we certainly acknowledge that the police are the principal source of protection against crime amongst the public, and clearly Bill C-26 does not alter that.

I'm wondering if you could provide us with your thoughts on this. Some people have argued that perhaps the changes brought by Bill C-26 might encourage an atmosphere of vigilantism.

[Rob Nicholson, Conservative, Niagara Falls, ON]

By all means, and thank you, Mr. Chairman.

I'm pleased to appear before this committee to present the citizen's arrest and self-defence act. This legislation aims to do three things: number one, it aims to expand the time in which a citizen may arrest another citizen for an offence or in relation to property; number two, it aims to replace the existing laws on self-defence with a new and simplified defence; and number three, similarly, it aims to replace the existing laws on defence of property with a new and simplified defence.

The members of the committee are no doubt aware of recent very public events involving citizens who resorted to using force against persons they suspected had stolen or damaged their property.

In addition to raising concerns about the limits of the power of citizen's arrest, these cases have also generated confusion about the relationship between citizen's arrest and defence of property, which itself is closely associated with the defence of self-defence.

These three mechanisms share common elements and arise in similar fact situations, which is why our government is presenting all three in Bill C-26. They typically come before the courts as defences when a person has done something that would otherwise be an offence, which they did for the purpose of apprehending a suspect or defending property or a person. Each provision reflects a different purpose for acting in emergency situations.

The bill's proposal to change the law on citizen's arrest is straightforward. Subsection 494(2) currently permits a property owner or a person in lawful possession of property to arrest a person they find in the act of committing an offence on or in relation to that property. Currently this provision does not allow for the arrest of a suspect even a short period of time after they were detected committing the crime.

This bill will allow more flexibility in the timing of an arrest. Specifically, it would amend subsection 494(2) to allow a person to arrest another within a reasonable time of finding the suspect committing the offence.

Some stakeholders may express concerns about the risks associated with permitting more arrests by citizens and the possible encouragement of vigilantes. I agree that, wherever possible, arrests should be undertaken by trained law enforcement officers, but we know this may not always be possible. I'm confident that the expansion of the citizen's arrest powers will not lead to vigilantism. Indeed the approach of Bill C-26 sets out a reasonable compromise. It extends the period of time for a citizen's arrest, but any delay must be reasonable. This power is itself limited to the narrow set of cases involving crimes of or in relation to property.

In addition, before making use of the extended time period, the arresting person must believe on reasonable grounds that it's not feasible in the circumstances for a peace officer to make the arrest. The existing law also requires the arresting person to turn over the suspect to police as soon as possible. These safeguards will help ensure that individuals who make a citizen's arrest are involved in law enforcement only to the degree necessary, and that the police maintain their primary law enforcement function. Arrests are dangerous and unpredictable, and our government will continue to urge Canadians to leave this job to professionals wherever possible, and in every case to exercise extreme caution.

In terms of the defences of property and person, the bill replaces the current multitude of provisions, which are largely unchanged from the original text enacted in 1892, and actually they had a pretty extensive history for 1892. These are basically the provisions that were contained in the laws of Upper Canada in or about 1840.

We have replaced those provisions with a simple, easy-to-apply rule for each defence. For decades criminal practitioners, the Canadian Bar Association, the Supreme Court of Canada, academics, and many others have criticized the law of self-defence primarily, but also the law of defence of property, as being written in an unnecessarily complex and confusing way.

The complexity of the law is not without serious consequence. It can lead to charging decisions that fail to take into account the merits of the defences in particular situations. It can confuse juries, and it can give rise to unnecessary grounds of appeal, which cost the justice system valuable time and resources. The law should be clear and clearly understood by the public, the police, prosecutors, and the court.

Bill C-26 meets those objectives. It makes the act more specific and simplifies it without sacrificing existing legal protections.

The basic elements of both defences are the same and can be easily stated. Whether a person is defending themselves or another person, or defending property in their possession, the general rule will be that they can undertake any acts for the purposes of protecting or defending property or a person as long as they reasonably perceive a threat, and their acts, including their use of force, are reasonable in the circumstances.

There are some special features of each defence that I would like to briefly mention. In respect of self-defence, an additional feature proposed in this bill is a non-exhaustive list of factors to help guide the determination of whether acts taken for a defensive purpose are reasonable. Clearly, what is reasonable depends upon the circumstances of each individual case; however, a number of factors commonly arise in self-defence cases and are familiar to the courts.

For instance, relevant considerations include whether either or both parties had a weapon and whether there was a pre-existing relationship between the parties, in particular one that included violence. Proportionality between the threat and the response is also highly relevant. The greater the threat one faces, the greater the actions one can take to defend against that threat.

The list can be employed to facilitate and improve charging and prosecution decisions. In court, the list will no doubt be a useful reference for the judge to use in instructing the jury. A list such as this also indicates to the courts that existing jurisprudence on these issues should continue to apply. We don't have to start from scratch.

The right to defend oneself from threats is fundamental. It's therefore tremendously important that we get it right and that we provide guidance as we shift from a highly detailed set of laws to a defence based on more general elements.

Now, with respect to the defence of property, the defence of property has as its core the same basic elements as self-defence, namely, a reasonable perception of a threat, a defensive purpose, and actions that are reasonable in the circumstances. However, the defence of property is necessarily more complex than self-defence.

There are many different types of property claims and interests, most of which are governed by provincial laws. Property concepts are implicated in the defence. The idea of peaceable possession of property is an additional condition for accessing the defence of property.

This term is used in the current law and has been interpreted by the courts to mean possession that is not subject to a serious challenge or that is not likely to lead to violence: for example, a thief who stole property and is not in peaceable possession of that property and cannot legally use force to defend his possession. It makes sense.

The criminal law prioritizes the preservation of the public peace and the status quo. The law protects possession, not ownership. Ownership disputes must be resolved by the civil courts, not through criminal action. The law permits what would otherwise be a crime to defend against emergency threats that risk permanent loss of or destruction to property.

As a final note, I draw your attention to the fact that both defences contain a special rule in relation to their use by someone who claims to be defending against law enforcement actions, such as an arrest or the seizure of property pursuant to a warrant. The rule is this: unless the person reasonably believes that the peace officer is acting unlawfully in discharging their duties, defensive force may not be used in this context.

Bill C-26 is consistent with the current law in these situations, but hopefully—as I believe it does—expresses the law more clearly. I encourage the members to support this legislative package, which aims to allow citizens more latitude in arresting individuals they have seen commit an offence on or in relation to property and to bring our laws of self-defence and defence of property from the 19th century into the 21st century.

Thank you.

Citizen's Arrest and Self-defence Act

[The Speaker, Conservative, Andrew Scheer]

Pursuant to an order made earlier today, the motion for second reading of Bill C-26, An Act to amend the Criminal Code (citizen's arrest and the defences of property and persons), is deemed adopted on division.

Accordingly, this bill is referred to the Standing Committee on Justice and Human Rights.

(Motion agreed to, bill read the second time and referred to a committee)

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.

Business of the House

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

Mr. Speaker, thank you for the opportunity to give my last Thursday statement of 2011. The fall has been a productive, hard-working and orderly session. It has been capped by results that we have seen in the House during delivering results month since we returned from the Remembrance Day constituency week.

Of particular note, this fall the House passed Bill C-13, the keeping Canada's economy and jobs growing act; Bill C-20, the fair representation act; Bill C-18, the marketing freedom for grain farmers act; and Bill C-10, the safe streets and communities act.

Other things were also accomplished, from the appointment of two officers of Parliament to the passing at second reading of Bill C-26, the Citizen's Arrest and Self-defence Act. I would like to thank the opposition parties who made these accomplishments possible. Nevertheless, the House has a lot of work to do when it returns in 2012.

The things I am looking forward to in 2012 include, after 48 speeches so far, returning to Bill C-19, the ending the long-gun registry act; after 75 speeches so far, continuing debate on second reading of Bill C-11, the copyright modernization act; after 73 speeches so far, continuing debating the opposition motion to block Bill C-4, the preventing human smugglers from abusing Canada's immigration system act from proceeding to committee; and, after 47 speeches so far, continuing debate on second reading of Bill C-7, the Senate reform act.

This winter, the government's priority will continue to be economic growth and job creation. We will thus continue to move forward with our economic agenda by debating legislative measures such as Bill C-23 on the implementation of a Canada-Jordan free trade agreement; Bill C-24 on the implementation of a Canada-Panama free trade agreement; Bill C-25, which is designed to give Canadians another way to plan for retirement through pooled registered pension plans; and Bill C-28 on the appointment of a financial literacy leader.

Needless to say, I am looking forward to the 2012 budget, the next phase of Canada's economic recovery, from the Minister of Finance, and I am looking forward to what I am sure it will deliver for the Canadian economy. This will be the cornerstone of the upcoming session.

With respect to the precise business of the House for the week of January 30, 2012, I will advise my counterparts in the usual fashion in advance of the House returning.

In closing, Mr. Speaker, please let me wish you, my fellow house leaders, all hon. members and our table officers and support staff a very merry Christmas.

In particular, I want to thank the pages, many of whom, as we know, spent their first significant amount of time away from home with us this fall. I wish them a pleasant time back home with family over Christmas. Perhaps we have provided some good stories for them to tell around the dinner table.

Merry Christmas, happy new year and all the best for the break. Here is to a productive, orderly and hard-working 2012.

Merry Christmas and happy new year. May the members of the House rest up in preparation for the hard work to come in a productive and orderly 2012.

Citizen's Arrest and Self-defence Act

[Joyce Murray, Liberal, Vancouver Quadra, BC]

Mr. Speaker, I enjoyed listening to the member speak to Bill C-10, for which he has not much respect and which we in the Liberal Party call the “more crime, less justice and spiralling costs” law. There is much I would say in agreement with the NDP member.

I want to return to Bill C-26 with my question. The member is probably well aware that on Tuesday a 30-year-old man in a Tim Hortons restaurant in Vancouver was shot on the spot but managed to survive. It is possible that someone might have intervened to protect the person in that situation.

One of the controversial parts of Bill C-26 is the broadening of the allowance from just protecting one's own life to intervening to protect another person's life. In the situation I mentioned, we can see that it would have been a positive thing if someone had disarmed and held the shooter, but there is also a concern that it could lead to vigilantism.

I would like to hear the member's comments on that provision in the new law.

[Dean Del Mastro, Conservative, Parliamentary Secretary to the Prime Minister and to the Minister of Intergovernmental Affairs]

Mr. Speaker, after that intervention, we should start pumping more oxygen into the opposition lobby because something has the member clearly dazed and confused.

It is interesting, on a bill about citizen's arrest, the member has used the same speech as he has used on the last seven or eight bills. I think it was the same speech.

Does the member see the merit in the bill that is before the House, Bill C-26? Does he understand how citizens have a right to protect themselves and their businesses and why there is a need for justice in this case? Does he support the government measure?

[Peter Julian, NDP, Burnaby—New Westminster, BC]

Mr. Speaker, I would like to thank my colleague, the member for Hamilton Centre, for bridging the gap between some of the other comments we have had in the House and my speech. Given the events of today, there are a lot of things going on, so I was a few minutes late and I apologize for that.

I appreciate my colleague across the way stating that he wanted to continue to hear the member for Hamilton Centre. He made that offer not just because the member for Hamilton Centre is very eloquent but also because he is well aware that I have risen in the House before, and will do so now, to comment very critically on the Conservative Party's so-called justice platform.

We have heard the member for St. John's East speak very eloquently to this particular bill. Its origin comes from the work of the member of Parliament for Trinity—Spadina. We need to pay tribute to her work, because she put in place many of the aspects of the legislation before us now. It was her constituent at the Lucky Moose Food Mart who was originally charged, so she raised the issue in an effort to clarify how owners of small businesses can protect themselves in this kind of circumstance. It is the member for Trinity—Spadina who put together the foundation of the bill.

The problem arises when we look beyond the bill itself. Although we will be supporting it at second reading, we see that many clauses have been inserted in addition to the work of the member for Trinity—Spadina. As the House knows, NDP members always do their homework. I am sure members have seen the figures showing that 71% of all of the bills before the House come from this caucus of very experienced veterans and very dynamic newcomers. It is by far the strongest caucus in the House. That is why the member for Trinity—Spadina was able to put forward this bill.

Unfortunately, because the Conservatives often write their justice policy on the back of a napkin, at committee we now have to look at the additional clauses that have been inserted, as we always do. We will be doing our homework. We will look at the impact of each one of these additional clauses thrown in by the Conservative government and make the practical and positive suggestions that we always have.

The question is whether the Conservatives will accept those positive suggestions. Time will tell.

However, when we get to the overall thrust of the so-called justice agenda of the Conservative government, we can see that we have very valid reasons to not have confidence in the government.

The Conservatives have put in place a massive unbudgeted prison program. They do not know where the money will come from. The provinces do not know where the money will come from. They wrote the bill out on the back of a napkin with no due regard for the consequences and brought forth one of the most expensive bills in Canadian history.

In addition, the Conservative government has cut back on crime prevention funding. It has to be completely disconnected from communities across this land to gut crime prevention programs that are actually the heart of investing in a smart foundation for building safer communities. That has always been something that the NDP has strongly advocated. The government cut away crime prevention and addiction programs at a time when those are exactly the tools that are needed to ensure that we do not have victims and that we continue to reduce the crime rate. Those are the kinds of measures that need to be taken.

Instead, the Conservative government has thrown in $10 billion or $12 billion--no one on that side even knows--toward building prisons, while gutting crime prevention and addiction programs. What is wrong with this picture? When we look at it, we cannot have confidence in the government to do what is right.

The Speaker well knows, because he has studied this issue even if his colleagues on the other side of the House have not, that from a fiscal point of view, every dollar invested in crime prevention and addiction programs saves the taxpayer $6 in policing costs, prison costs and court costs. It is $1 for $6.

Colleagues on the other side say, “We do not care; we just want to spend money on prisons”, but it cannot be an emotional thing. The Conservatives cannot be emotional. They have accept that they have to think practically. They have to realize that gutting crime prevention and addiction programs is the worst possible thing they could do.

What else have the Conservatives done? Of course, they refused to keep their promise about hiring front-line police officers across the country. We are seeing all kinds of complications in pushing provinces away from agreements with the RCMP. Perhaps most egregious--and this is something I am going to take a moment to talk about, because I feel it very intensely, as do all colleagues on this side of the House--they have refused for five long years to put in place a public safety officer compensation fund.

It is true that was an NDP initiative. It was brought to the House by the NDP, and Conservative members voted for the public safety officer compensation fund. Since 2005, when they made the commitment to establish it, they have pushed off police officers and firefighters who have asked every single year, as their number one request of parliamentarians and government, for such a fund to be established. Why do they make that request? It is because when firefighters and police officers pass away, as they do every year, in some cases they are protected by existing insurance schemes or collective municipal or provincial legislation, but in many cases they are not.

I have spoken to families and I have seen what happens when insurance such as a public safety officer compensation fund is not in place. We are talking about the widows and widowers of firefighters and police officers potentially having to sell their homes. We are talking about children who were getting post-secondary education, but because their firefighter parent passed away saving lives—

Conservatives are laughing at what happens to the children of deceased firefighters and police officers. It is not a laughing matter. The sons and daughters of firefighters and police officers often have to stop their studies because when there is no insurance in place. Widows and widowers have to make sure somehow that food is kept on the table and the mortgage is paid.

For five long years they have been waiting. For five long years they have been telling Parliament the public safety officer compensation program needs to be put in place.

New Democrats are reiterating today that we stand 102 strong in favour of immediately putting in place a public safety officer compensation fund and ensuring that compensation exists when firefighters and police officers pass away in the line of duty. That is a commitment that we will continue to keep. It is a commitment that we stand for. We will continue to push the government to do the right thing.

We are not talking about something that is incredibly complicated. We are talking about a program that can be established for about $3 million a year. As we know, there is a similar program in the United States already in place to provide that compensation.

Because the government has treated firefighters and police officers with such disrespect, New Democrats do not trust them on their legislation. As I said earlier, the fact is that Conservatives are willing to spend billions of dollars on a prison program, yet they refuse to provide firefighters and police officers with compensatory insurance and they have cut back on crime prevention and addiction programs. What is wrong with this picture?

When it comes to Bill C-26, there is a component that New Democrats support. I am willing to continue to speak if my Conservative colleagues want to continue to hear from me. This conversation has been good. I think they are finally learning that their justice policy is wrong and that they should be following the lead of the NDP. That is a good thing, and that is why New Democrats will support the bill at second reading. However, we are going to be doing our homework, and if these poison pills are put in the bill again, there will be fighting at committee.

[Joyce Murray, Liberal, Vancouver Quadra, BC]

Mr. Speaker, the personal stories shared during the debate were very interesting and very meaningful, and they illustrate various aspects of the bill. I would like to thank the hon. member for sharing his experience.

I have a specific issue. The member just noted that he would look forward to a variety of witnesses and a thorough discussion. I know he is aware that many members feel it is important that there could be amendments that would be respected and included.

One of the concerns that we in the Liberal Party have was laid out by the member for Mount Royal in his initial speech. It is that contrary to the earlier version of the bill, Bill C-26 adds the phrase “threat of force” to this part of the Criminal Code as being a legitimate basis for civilian action. “Threat of force” could be seen as quite subjective. It could be that this term overbroadens the bill to the point that we could have people putting themselves in harm's way.

I would like the member's comment on where his party stands on this issue of threat of force and what they may be proposing in that regard.

[Claude Gravelle, NDP, Nickel Belt, ON]

Mr. Speaker, as this is the last occasion I am going to have to speak in the House before the break, I would like to wish you, the pages, my colleagues at both ends of the House and on the other side of the House a very merry Christmas and a happy new year.

I would like to wish the people of Nickel Belt a very merry Christmas and happy new year.

I would like to summarize Bill C-26. Bill C-26 amends subsection 494(2) of the Criminal Code dealing with citizen's arrest to provide greater flexibility. The changes would permit citizen's arrest without a warrant within a reasonable period. The key words are “reasonable period”. Currently subsection 494(2) requires a citizen's arrest to occur while the offence is being committed. Sometimes that is impossible.

Bill C-26 also includes changes to the sections of the Criminal Code related to self-defence and defence of property. According to the government, these changes would bring much needed reforms to simplify the complex Criminal Code provisions on self-defence and defence of property. They would also clarify where reasonable use of force is permitted.

Since half of the bill proposes measures that the NDP member for Trinity—Spadina had previously called for, it follows that we would support this bill at least at second reading. This part of the bill amends subsection 494(2) of the Criminal Code dealing with citizen's arrest to permit arrest without warrants within a reasonable period. Again there is that term “a reasonable period”.

The other half of the bill seeks to clarify sections of the Criminal Code pertaining to self-defence and defence of property. We support in principle improving language in legislation for the purpose of clarity, especially since the courts have indicated a problem with the lack of clarity. Further study will be needed to see if the bill does in fact clarify these sections, and the consequences of the clarifications are acceptable to us. This is the type of work we can do at committee stage.

Also, we would not be supportive of anything that would encourage vigilante justice or that would encourage people to put their own personal safety at risk. While that does not appear to be the purpose of this bill, we understand there are concerns about these matters in relation to citizen's arrest, self-defence and defence of property. Again, this is why we need to carefully study this bill at the committee stage.

I will provide some background on this bill. 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. Bennett was initially caught on security footage stealing from the store, and he returned an hour later. At that time, Chen, who was 36, and two employees tied up the man and locked him in the back of a delivery van.

When the police arrived, they charged Chen with kidnapping. It is hard to believe, but that is what they did. He was charged with kidnapping, carrying a dangerous weapon, a box cutter which most grocery store workers would normally have on their person, assault and forcible confinement.

Most of the members who have spoken today have talked about an event that has happened to them personally. I would like to relate one of my own experiences. Someone stole two items from my shed. One of those items was my toolbox. I am not Tim the tool man by any stretch of the imagination, but I like to put up things in my house and to do some work. One of the jobs that I hate the most, and I do not know why I hate it, is putting up curtains.

When I went to my shed to get my power tools to put up curtains for my wife, my drill was gone. That could be good and that could be bad. It could be devastating because I had lost my power tool, but it could also be good because I hate putting up curtains. There is give and take. In this case I was kind of relieved, because I really do not like putting up curtains.

The other thing that was stolen was my golf bag. That can be devastating. I do not get the chance to golf very much any more, but I am sure everyone can imagine how I felt when I noticed that my golf bag was gone. That can hurt, especially when the golf clubs are in the bag. That is really bad, especially when it is 75° on a Saturday morning and my chums are going golfing and my golf bag and clubs are gone. That can be really painful, more painful than losing the power tools, although golf clubs are a tool also, a tool for enjoyment.

Returning to the case of Mr. Chen, the crown prosecutors dropped the kidnapping and weapons charges but proceeded with the charges of forceable confinement and assault.

According to the Criminal Code as it is currently written, a property owner can only make a citizen's arrest when the alleged wrongdoer is caught in the act.

In some cases that is okay, if it is a Walmart store, where there are security guards who can arrest people. However, the owners of corner stores cannot afford security guards. If they see somebody stealing their property, they have to take action.

On October 29, 2010, Mr. Chen and his two co-accused were found not guiltily of the charges of forceable confinement and assault. Anthony Bennett pleaded guilty in August 2009 to stealing from the store and was sentenced to 30 days in jail, and rightfully so.

That case caused a lot of controversy. Some of it had to do with whether there was sufficient policing in the area.

My riding of Nickel Belt is huge. To go from Foleyet which is in the west to Garden Village which is in the east could take seven hours, and to go from Killarney in the south to Capreol in the north could take another four or five hours. We do not have policemen readily available 24/7, although we do have a fine police station and police officers. Because the territory is so big, it is difficult for a police officer to be at the scene of a crime within a few minutes. We have to take that into consideration.

I have only one minute left, so I will conclude by saying that we will support the bill at second reading. We want it to have careful consideration, which is code for not rushing it through. We want to hear from people who have practised criminal law. We want to hear from experts from the Department of Justice, the Canadian Bar Association and others. We need to examine the bill very carefully. Also, we should rely not just on ourselves but on the expertise of people who have analyzed these provisions, studied all the cases, and who can help us ensure that we are doing the right thing.

Having said that, we will support the bill at second reading, but we want it to be given extremely careful consideration at committee.

[Kevin Lamoureux, Liberal, Winnipeg North, MB]

Mr. Speaker, I have had the opportunity to ask this question previously.

Without question, the issue of crime and safety is really important to my constituents in Winnipeg North. People want to feel safe in the communities in which they live. I made a commitment to bring my constituents' message to the floor of the House and to the Prime Minister and the government as a whole.

Bill C-26 has some merits. It has the potential to have a real impact on our streets.

The question I have is in regard to reasoned amendments. We believe that the bill needs some changes in order to make it a better bill that could ultimately receive support. Does the member believe that reasoned amendments would be a positive step and should be allowed to pass when the bill reaches committee stage?

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

Mr. Speaker, I rise here in the House today to support Bill C-26 at second reading.

This bill comes as a result of the events that took place at the Lucky Moose grocery store. I am sure that all members are aware of what happened, but I will briefly go over the events anyway. Mr. Bennett stole a plant from Mr. Chen's grocery store. Mr. Chen had already been the victim of several thefts from his business. Using a camera, he was able to identify Mr. Bennett. An hour later, Mr. Bennett returned to the Lucky Moose. At that time, Mr. Chen and two of his relatives arrested Mr. Bennett with a knife and tied him up in the back of a truck, if I am not mistaken. It is important to emphasize that during the trial that ensued, Mr. Bennett admitted that he had returned to Mr. Chen's grocery store with the intention of stealing something else.

After detaining Mr. Bennett, Mr. Chen called the police so that officers could come and take the thief into custody. However, when the police arrived, they arrested not only Mr. Bennett, but Mr. Chen and his family members, too. They were charged with the kidnapping, assault and forcible confinement of Mr. Bennett, given that, according to the police officers, Mr. Bennett was not in the process of stealing from him when Mr. Chen arrested him. This arrest drew a great deal of media attention and people felt that Mr. Chen was being treated unfairly. I would like to repeat that this was a case of a small business owner who arrested a thief who was stealing from him and taking away his livelihood.

The idea for this bill arose out of the feelings of injustice shared by the entire country. The hon. member for Trinity—Spadina was the first to react with her private member's bill, a bill that was introduced in this House in the last Parliament.

I would like to express my sense of solidarity with Mr. Chen and small business owners across the country. They work hard to provide essential services to their community and to earn a living. Small businesses and the families who run them are particularly vulnerable to the type of theft committed by Mr. Bennett. They have to resign themselves to the small profit they earn since they have far fewer goods and much less capital than corporations, which can afford to be more competitive. These small businesses are at the heart of the communities in our country. We must give them the means to survive.

My riding of Terrebonne—Blainville has many small businesses similar to Mr. Chen's, and much of our economic wealth comes from the work of the small business owners. It is important to me to listen to them and understand their needs, their fears and the difficulties they are facing. I can understand how any theft, no matter how minor, can affect the modest income of Mr. Chen and his family and how important it was for them to stop Mr. Bennett when no police officer was there.

The reason I support this bill at second reading is based on this sense of solidarity with small businesses. The current legislation did not successfully defend the interests of Mr. Chen. He was the victim of repeated thefts and then the victim of our legal system since the law was insensitive to his case.

In cases like this, where we recognize that the status quo is unbalanced, it is our responsibility as politicians to do something about it. We have an obligation to think this through and strike a new legitimate and fair balance. That is why I support the principle of this bill at second reading.

That being said, I am eager to examine this bill more closely in the Standing Committee on Justice and Human Rights. It is imperative to focus on some aspects of this bill that merit further discussion.

First, we must recognize that this bill must not become an invitation for small business owners to use this type of arrest because that is not their job. In this regard, we must be very careful about the message this bill sends. When we talk about citizen's arrest and establishing flexibility regarding the time when the arrest becomes legal—something that is introduced in this bill—we must emphasize that this right must be exercised only in exceptional and extreme cases.

I repeat that this bill must not be an incentive or public invitation for just anyone under any circumstances to exercise the right to arrest someone who is suspected of theft. This bill is simply a response to the double injustice experienced by Mr. Chen and that could be experienced by other small business owners who may find themselves in a similar situation.

We do not want to put the grocery store owners, such as Mr. Chen, into risky situations. We must, therefore, do more to encourage other types of community policing and other measures that could help to reduce the proclivity some people have to steal.

I would also like to emphasize that this bill absolutely must not open the door for a person who makes a citizen's arrest to treat the person he arrested in any manner he chooses while he waits for the police to arrive. I hope that the committee will examine this issue in greater depth.

I would like to make one last point in closing. I am not really familiar with Mr. Bennett's life story, but I would truly like to emphasize the fact that, in order to protect people like Mr. Chen, it is our duty as politicians to examine the human and social factors and determinants that drive people like Mr. Bennett to commit crimes. I am not saying that there will never be thieves in our society, and we must ensure that we have laws to protect Canadians from theft. I am simply saying that the unfortunate incident that occurred at Mr. Chen's grocery store should not give us carte blanche to categorize people as good or bad.

We need to remember that reality is much more complex. In order to make our streets safer for our families and for businesses like Mr. Chen's, we must think about the reasons behind Mr. Bennett's actions. We must protect all Canadians.

[Ryan Leef, Conservative, Yukon, YT]

Mr. Speaker, it is a pleasure to speak to Bill C-26. I have heard a number of my colleagues speak on both sides of the House. At the risk of repeating some of the things we have heard today, I want to highlight the things that are unique to this bill and that would be great for Canadians.

From the perspective of a person who represents a vast rural riding, the Yukon Territory, there are geographical gaps in terms of the ability to police to have appropriate numbers of officers in such a vast riding. That is no different across rural Canada in general. When crimes occur and there are citizens available to act on them, it is a tremendous shame that people who do so find themselves on the opposite side of the law. As one of my colleagues pointed out, these heroes have stepped forward to protect Canadians and property and to what is right. This bill seeks to clarify that when people act as heroes, people who step forward and do what is right to prevent crimes, we ensure they are not punished for those responsible steps they take as Canadian citizens.

A number of programs across Canada already celebrate the role citizens play in crime prevention, programs like Crime Stoppers, Neighbourhood Watch and Citizens on Patrol. These programs are examples of encouraging average citizens to become the eyes and ears for police. Without their assistance, police officers have a very difficult time doing their jobs and completing their required tasks, given the responsibilities they have, the vast distances they need to travel and the limited resources they have in certain regions of our country. They rely heavily on these exceptional programs.

We see advertisements in Canadian newspapers that provide Crime Stoppers tips and ask for the help of Canadians. They publish pictures of people who are wanted for various offences. When they do that, they are obviously asking for the public's assistance from the perspective of not necessarily looking for these people, but to observe, record and report what they see to try to get police to situations as quickly as possible. That is certainly something our government is continuing to promote.

I have definitely heard the word “vigilante” on both sides of the House today and the fear that people will all of a sudden, with this new-found authority, engage in vigilantism, as if Canadians do not have better things to do than run around the streets and pretend they are police officers. I do not think any expanded authority or protection, which might be the more appropriate term for people who act as heroes versus expanded authority for them to go out on Canadian streets and act as police officers, is not the intention of this bill. We are encouraging all Canadians to utilize police as the first line of protection, the agency that is mandated to protect Canadian streets and deal with crime in our country, and that Canadians observe, record and report to police when they see crimes occurring.

Whether it is during statements by members or in debate on other bills and issues, I hear members on both sides of the House say that they want to stand up against bullying and impaired driving in our country, that they denounce violence against women and domestic assault and that we cannot tolerate this. The bill would allow the protection for people who have the skills, knowledge, ability and at times just the courage to step forward to stop that. It would prevent them from becoming victims of an unclear legislation.

Can anyone imagine any of us walking along our community streets and hearing a cry for help and, in this current day, being concerned that our intervention, if physical intervention were required, could get us arrested when we were merely trying to do the right thing and help somebody?

We know today that one of the most effective ways to prevent bullying from occurring is to step up and speak out. However, imagine if we stepped up and spoke out and then ended up having to use a reasonable level of force for intervention to protect a fellow citizen, but then being arrested and charged for it. This has happened in our country, which is a shame because it discourages Canadians from doing the right thing. It discourages them from stepping forward, not just to be a hero but to do what is right, what is expected and what we should do as Canadians.

It is a little ironic that we are brave and courageous here in the House to say that we will not tolerate bullying, impaired driving, domestic abuse or violence against women but we allow laws to exist on our books that criminalize Canadians who do have the courage, skill, knowledge and ability to step forward.

I draw the House's attention to a marvellous book written by Amanda Ripley called, The Unthinkable. In her book she talks about the first person most likely to be involved in saving another person's life. She says that, whether in an urban or a rural setting, the first person will be one's fellow citizen, the average Joe walking the streets. It does not matter if one is in a big city or rural Canada.

We heard a member on this side of the House talk about fire prevention as an example. It does not matter if one's house is burning, if one is injured and requires ambulance services or if there is a crime, the first person most likely to intervene or be there to do or say anything about it will not be the fireman, will not be the paramedics and will not be the police. The first responders will be average Canadian citizens who are, day in and day out, the heroes saving lives, whether it is a fire, a medical emergency or a criminal offence. We want to ensure that we have a body of legislation that reflects the role we expect, want and hope Canadians to play without making them a criminal in the situation.

I recognize the concern on both sides of this House that this may encourage vigilantism but I do not necessarily see that being the case. I do not think people will read into the legislation that they have an expanded authority. As I said, I do not necessarily see this as being an expanded authority for Canadians. I see it as being an important level of protection that we need to provide Canadians.

We already have sections under the Criminal Code that talk about the use of force and where force is justified. Under section 37, everyone is justified in using force to defend themselves or anyone under their protection from assault if they use no more force than is necessary to prevent that assault or repetition of it. That exists now but we need to ensure that it is clear so that we do not see vigilantism and abuse of that authority. I believe the bill would allow us to do that.

[Brian Masse, NDP, Windsor West, ON]

Mr. Speaker, I am pleased to rise today and talk about Bill C-26. This legislature has been preoccupied with a lot of crime initiatives over the last part of the session. The Conservatives have been pushing a whole crime agenda. There is some consensus around this one though. It is nice to see the issue from the member for Trinity--Spadina addressed in this particular bill. I will get into the Lucky Moose Food Mart story later.

This is an amendment to the Criminal Code to deal with modern situations that are taking place and to clarify for the courts not only apprehension of individuals by citizen's arrest, but also protection of private property.

It is important to back up a little though and talk about the overall issue of crime in Canada. We know that crime in Canada is actually down right now. I know that the government's official position is that unreported crime is up. I do not know how unreported crime can be up, but apparently that is the government's position. It seems to know the unreported crime rate. However, we know through statistics that it is not the case. In fact, sometimes when we hear the rhetoric coming from the other side of the House we would be concerned to let our kids out at night. The reality is that Canada is a relatively safe nation and we have good police forces with well-trained men and women who serve the community.

In this particular case we are looking at amending the Criminal Code to deal with some issues that have emerged. The case of David Chen and the Lucky Moose Food Mart is an important one. For those who are not familiar, he was being robbed again by a routine thug. He decided to apprehend the individual to stop the theft because it was too difficult to have that type of atmosphere in his store. Because he detained the individual, he was later charged by the police. Because he had box cutters, which is often the case in a grocery store, he was also charged with a weapons offence.

This was a sad situation that was finally resolved many months later and the case dropped. However, it brought to light the real problem that some people face with restraints on some of our public services, where those services often do not have the capability to respond. I am a former city councillor. I can say that there is not unlimited support to provide our police with the proper time and availability. It becomes challenging, so often some people feel they have no other choice. This is why we saw the apprehension take place and we saw the unfortunate result. This bill would amend the Criminal Code to deal with that.

We have to be careful about whether we want to create a vigilante society. This is one of the things we need to hear from witnesses about at committee. Often, we have seen instances where the replacement of law enforcement by citizens has been a negative thing.

One such case is the Minutemen. The Minutemen have taken over different areas of jurisdiction on the Canada-U.S. border because they feel there is not enough law enforcement and not enough policing of the border. They have organized themselves. I have had debates with Congress officials about these groups because often they are actually armed. Because they are in the United States, they arm themselves. They are looking for people up and down the Canada-U.S. border. They are also on the southern border. There has been quite a lot of talk about what they do and how they do it. There is a lot of concern among law enforcement officials on the U.S. side because the Minutemen are not well trained and they use extreme tactics. Just for crossing illegally or crossing at an area where one is not supposed to cross, there has been violence. We have to be careful about those situations. The Minutemen are a good example of vigilantism going too far.

We have also seen in North America, and even in my constituency of Windsor West at one point, the Guardian Angels patrolling the streets. There were issues with the way some of them apprehended people. Not all of them, there is no doubt about that, but there have been situations where these chapters have come and gone.

A bill like this can feed into the frenzy of the idea that we do not have a safe community or that crime is rampant in Canada. The government has done that with its crime omnibus bill, which will not pass in this session of Parliament, ironically because the government refused to move the necessary amendments for it to be legal. Now we have consequences as well with the upcoming budgetary allocation for the bill.

We need to recognize that resources will be stretched. This goes back to groups like the Guardian Angels. They were formed in Los Angeles. They went across the United States and then chapters came to Canada. However, they have not sustained themselves, and there are lots of reasons for that.

This bill would amend the Criminal Code in a way that would provide some clarity for specific situations. That is the big difference. I look at this bill, and maybe other members do as well, as being able to help people like David Chen. It will help representatives, like the member for Trinity—Spadina, to address issues such as those that took place at the Lucky Moose.

As well, there is the protection and private property. That is an important factor. There have been a number of cases that have come forward under the Criminal Code. Chief Justice Lamer stated that sections 34 and 35 were unclear with regard to private property. We want to see greater clarity about what will happen and who is responsible. At the same time, we want to know if there will be some reciprocity to the individual when that takes place.

When we move this bill forward, it will be interesting to listen to witnesses who come forward. In my opinion, it will be important for the government to be open to the consideration of amendments. We want to ensure that there will be balance in this. The bill proposed by the member for Trinity—Spadina is balanced. There is some more clarity required on the private property element.

However, to be realistic, we need to ensure that we do not make people feel they are no longer safe in Canada, that rampant crime has taken place across the country. It is just not the truth. The truth is that crime is down in Canada, but we need to modernize some tools. This is one thing we can do, which will not be at a cost to the Criminal Code.

Interestingly there are no mandatory minimums in the bill. There are no automatic penalties. However, the bill does give clarity. That is an important difference with this bill versus the government's current omnibus bill, which will come with a hefty price tag. There are lots of issues with it.

As a former coordinator at the multicultural council, I worked with youth at risk. We found that if they were given an opportunity, they looked forward to a job or an education rather than repeating an offence. It is critical that we have those types of programs in place. We had 16 youth at risk, 8 who were new to the country and 8 who were long-term Canadians. The eight who were long-term Canadians had made bad mistakes, whether it was shoplifting, assault, some small crime, maybe a charge related to drugs or some other small theft. We mixed them with new Canadians and put them in programs to fight racism issues and to promote community programs.

With that program, we had a success rate of over 90%. We have found that those kids with problems understood that the new Canadians just needed to learn the process to advance in their lives. They knew the system and they would teach new Canadians about a number of different things. There would be a program with resume writing, skills development, life skills and a whole series of things. That was much more progressive, and we had a 90% success rate. We found that people did want to get jobs.

I will conclude by thanking the member for Trinity—Spadina for raising this issue in the House of Commons. It is important to note that, for a change, we will see the government working in consensus, trying to improve the system, as opposed to conflict.

[Joyce Murray, Liberal, Vancouver Quadra, BC]

Mr. Speaker, I am pleased to speak to Bill C-26. The bill would amend subsection 494(2) of the Criminal Code to enable private citizens who own or have lawful possession of property, or persons authorized by them, to arrest within a reasonable time a person who they find committing a criminal offence on or in relation to that property.

As the Liberal critic said, the Liberals support the bill in principle, but we have some concerns about the scope of the self-defence provisions. They need to be further examined in committee.

I note that in this debate some Conservative members have assured the House that potential amendments will be discussed and considered and maybe incorporated. I want to point out that has certainly not happened in this 41st Parliament so far. All of the bills that have come forward have been rushed through, including Bill C-10, a very substantive bill that needed amendments. Even the minister recognized that amendments were necessary. He tried to put them in later and failed because they were rejected out of hand at committee where they should have been accepted.

We are optimistic that the Conservative government will shift its process of unilaterally pushing through its bills. We are optimistic that the government will start listening to the opposition parties and the diverse voices from different parts of the country.

Bill C-26 does not contain any new powers or concepts, as I noted previously in a question in this debate and as was said by the member for Northumberland—Quinte West.

However, Canada's self-defence laws are complex and out of date. This bill would bring provisions with respect to self-defence that are spread over four sections of the Criminal Code into one defence provision.

The Liberals have some concerns about the bill which we feel need to be thoroughly explored in committee. Our critic, the member for Mount Royal, has laid out those concerns clearly. They boil down to what could be seen as gender discrimination in the bill. The reasonableness of someone's self-defence action refers to size, age and gender of the parties to the incident. We contend that size and age may be critical factors, but gender could reinforce the concept of “the weaker sex”, which is an anachronism in today's world. It is not appropriate. Women are just as capable of wading in as anyone is.

I have a personal incident with respect to a property crime. The member for Winnipeg Centre described his difficult situation, but mine was resolved much easier.

I returned to my company's office late at night, which many parents of young children do after the children are in bed and everything has settled down. This is a large building of 5,000 square feet and contains a number of offices. Clearly it had not been properly alarmed. When I went into the office I encountered a hefty individual probably in his late twenties. He did not belong there. He had been rifling through the petty cash and the drawers and personal effects of my staff. Alone at night in my office, I was completely shocked to encounter this individual. I used a very potent weapon to deal with this situation, my tongue. I reacted by telling him all of the reasons he should leave right away. I told him he had no right to be there as it is a family business where we work hard to provide a good service. Essentially, I succeeded in shaming the individual and he left.

However, I later realized he might have had a gun or a knife. He might have decided he did not want to leave because he had not completed his efforts to secure funds for whatever purpose. He might have resisted and I would have had to take a different measure, which I would have done in defence of my property.

I appreciate that the laws should be clear and that people, who are in situations where they are defending property or persons, should not have to worry that they may be charged under the Criminal Code because of confusion. I support this.

Many of the members on the Conservative benches have talked about their broader approach to crime. I have deep concerns about the Conservative government's broader approach to crime. It is partly because it does absolutely nothing to help prevent these very incidents of property and personal crime for which Bill C-26 provides citizens with a recourse.

Why are we not finding ways to reduce crime? Why is the government actually committing billions of taxpayers' dollars to a crime agenda or regime that goes completely contrary to the evidence and advice from states like Texas and California that have experimented with the kinds of provisions built into the Conservative government's approach to crime? They have failed, they have been costly, they have reduced justice, and they have actually increased crime. The government is going down that road.

As the member for Northumberland—Quinte West has already said, there are no new concepts or new powers in this bill. It clarifies an existing law that protects citizens in situations where they must defend their lives, and so forth. Furthermore, we are being given the same amount of time to debate this bill as we were given to debate Bill C-10, which included nine bills. Bill C-10 has very serious ramifications that would radically alter how youth are treated by the law. A number of professionals said that it was a bad bill, but we did not have time to debate it in this House, in this 41st Parliament, with the new MPs. Bill C-26 is much smaller than Bill C-10 and yet we were allocated the same amount of time for debate in each case.

I want to know why we are not seeing prevention but the warehousing of mentally-ill Canadians and Canadians struggling with drug addictions, who should be provided funding for treatment and prevention. In Vancouver, the youth skills connect program has been cut, so prevention programs for youth are being cut. The balance is completely out of whack and will be tipping over Canada's justice system in a very negative direction.

Liberals support this bill, but certainly not the overall approach to crime by the Conservative government.

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

Madam Speaker, that is what we are doing right now. We are exchanging views and we are talking about it. If we want to score political points and talk about other things rather than just Bill C-26, we can do so.

However, the member brought up another important point. She said that she had personal experience with a break and enter. She came home and found people in her house. Thank goodness, I have never had a break and enter at my residence, but I have had close friends and fellow police officers who have.

I recall one police officer telling me that when he came home, the thieves had urinated and defecated in his house, once they found out it belonged to a policeman. They took things that were not of great value to other people, such as grandma's old ring that she had given to his daughter. His daughters were unable to sleep at night because they were afraid the bad man would come.

I understand the tremendous psychological issues that go along with the perpetration of crime and how we continue to be—

[Elizabeth May, Green, Saanich—Gulf Islands, BC]

Madam Speaker, I think all members of the House have a lot of sympathy with the intention behind Bill C-26. People have been sharing personal stories. I will not forget the time that our gift shop on Cape Breton Island was being robbed. We called the RCMP and they said to stay out of the guy's way and they would see when they could get there. We were not able to do anything about the fact that we were robbed. This is a typical story on Cape Breton Island, and nothing against the RCMP, but they tend to take hours to show up.

My own sense of how we respond to this now is that, given technology, the most useful thing in apprehending criminals is the advent of things like cell phone videos. There is an ability to get the evidence and give that to the Mounties later.

I agree that we must provide a statutory defence so that people who try to protect their business or their life and limb are not charged with a criminal offence. The concern I have is that it goes beyond prosecutorial discretion here and, by providing the idea of citizen's arrest, no matter how much we say there is caution, how do we avoid people putting themselves at risk, feeling empowered to make a citizen's arrest without the training to know how to handle a dangerous situation?

[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.

[Sylvain Chicoine, NDP, Châteauguay—Saint-Constant, QC]

Mr. Speaker, the Conservative government introduced Bill C-26, which covers and provides clarification on citizen's arrest. This bill is very similar, identical even, to Bill C-60, which was introduced by the hon. member for Trinity—Spadina during the last Parliament.

The changes made by Bill C-26 will allow citizen's arrests without a warrant within a reasonable period of time. Right now, under section 494(2) of the Criminal Code, a citizen's arrest must be made while the crime is being committed. Bill C-26 also includes changes to the Criminal Code related to self-defence and the defence of property.

Sections 34 to 42 of the Criminal Code pertain to self-defence and the defence of property. Sections 34 to 37 of the Criminal Code are repealed and replaced with a single self-defence provision that applies to any offence. The current distinctions between provoked and unprovoked attacks, as well as any intention to use deadly force, are eliminated.

Bill C-60 also sets out a non-exhaustive list of factors that the court may consider in determining whether the act committed is reasonable under the circumstances. The bill will repeal sections 38 to 42 of the Criminal Code, which pertain to defence of property, and replace them with a single defence of property provision. As a result, the bill will eliminate the current distinction between the defence of personal and real property.

The bill amends the citizen’s arrest section of the Criminal Code, but only section 494(2). Thus, the powers of citizens to make arrests set out in section 494(1) remain as they are. These powers mean that anyone may arrest without warrant a person whom he or she finds to be committing an indictable offence or believes, on reasonable grounds, has committed a criminal offence and is escaping from and freshly pursued by those with lawful authority to arrest that person.

The bill amends section 494(2), which applies to the owner or person in lawful possession of property or a person authorized by the owner or lawful possessor. At present, such a person may arrest without warrant a person whom he or she finds committing a criminal offence on or in relation to that property. But the amendment goes on to allow such a person to make an arrest within a reasonable time after the offence is committed. Such an arrest can be made if the person making the arrest believes on reasonable grounds that it is not feasible in the circumstances for a peace officer to make the arrest.

In addition, a new section 494(4) is added to the Criminal Code, clarifying that a person who makes an arrest under section 494 is authorized by law to do so for the purposes of section 25 of the Criminal Code. The purpose of this amendment is to make it clear that use of force is authorized in a citizen’s arrest, but that there are limits on how much force can be used.

The government says that it is bringing forward this bill in order to make necessary changes to the Criminal Code that will clarify the provisions pertaining to self-defence and defence of property. The changes will also clarify the reasonable use of force.

We are very pleased that the Conservative government has decided to clarify the changes to citizen's arrest, especially since we had introduced a similar bill to that end.

Just like the Conservative government, we do not want honest Canadians who are victims of crime to be victimized again by our judicial system.

We support the amendments to the legal provisions on citizen's arrest, particularly because various courts have indicated that there are problems with the interpretation of the law. For example, they have said that the Criminal Code provisions concerning self-defence are too complicated and confusing. The provisions have been subject to much criticism. In R. v. McIntosh, Chief Justice Lamer wrote that sections 34 and 35 “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 R. v. McIntosh has been called “highly unfortunate” for further muddying the waters around self-defence provisions.

However, we believe that a more in-depth study will be required, given the complexity of this issue, as the courts have indicated. We must ensure that the bill clarifies the sections of the Criminal Code to help the justice system do its job. We will also have to look at the impact and consequences of this bill to ensure that these clarifications are acceptable to the Canadian public. We want to avoid having the clarifications to the Criminal Code encourage self-proclaimed vigilantes. In addition, we do not want people to put their lives in danger. We know that that is not the objective of this bill. However, a number of concerns about this have been raised by some of our constituents. That is why it will be important to allow parliamentarians to properly discuss this bill in committee.

We are obviously asking the Conservative government not to limit debate in committee, as it did with Bill C-10, for example. Bill C-26 will have serious repercussions on Canadians who must defend themselves or their property. That is why it is so important to properly debate this bill in committee.

I would like to remind the House of the facts that gave rise to the recent legislation on citizen's arrest. On May 23, 2009, David Chen, the owner of a grocery store in Toronto, arrested Anthony Bennett, who had stolen something from his store. After being caught in the act on security cameras, Mr. Bennett went back to the store about an hour later. At that time, the owner and two employees managed to tie Mr. Bennett up and held him in a delivery truck. When the police arrived, they charged Mr. Chen with forcible confinement, kidnapping and carrying an edged weapon—a box cutter, a tool that many merchants have in their possession. The crown attorneys later dropped the charges of kidnapping and carrying an edged weapon, but they maintained the charges of forcible confinement and assault.

According to the Criminal Code as it is currently written, a property owner can make a citizen's arrest only if the alleged wrongdoer is caught in the act. Mr. Chen and his two co-accused were found not guilty of the charges of forcible confinement and assault on October 29, 2010. In August 2009, Anthony Bennett pleaded guilty to theft and was sentenced to 30 days in jail.

At present, the citizen’s arrest authority is very limited and is authorized only when an individual is caught in act of committing an offence on or in relation to one's property. Accordingly, this bill authorizes an owner, a person in lawful possession of property—or a person authorized by them—to arrest a person within a reasonable amount of time after having found that person committing a criminal offence on or in relation to their property.

The bill authorizes a citizen’s arrest only when it is not feasible in the circumstances for a police officer to respond, which is often the case in the event of shoplifting, for example. The time it takes for the police to respond is often too long and they arrive much too late. Furthermore, this bill stipulates that the use of force is authorized in a citizen’s arrest. However, a person is not entitled to use excessive force.

In addition, the person making the arrest must take the risk factors into account and ensure that their safety or the safety of others is not threatened. They must also ensure that they have correctly identified the suspect and their criminal conduct. Furthermore, reporting the incident to the police remains the best solution.

I would like to point out that thousands of Canadians work as security guards in buildings or businesses. Many of those guards have told me about the problems they have properly protecting the property of the merchants. They have to catch the criminal in the act and that is not easy. Often, they discover the crime after the fact, after reviewing the security camera footage. However, that is often done after the fact and the security guards cannot take any action against the wrongdoer. The worst part is that some wrongdoers return a number of times to commit theft and the guards hired by the businesses cannot do anything about it even if they saw the individual in question commit a crime before.

They have to again catch the wrongdoer in the act and they cannot arrest him for the previous offence. What is more, the complexity of a citizen's arrest makes security jobs risky. Security guards have to be 100% certain of what they are doing because if they are not, there could be legal consequences for their company and their own job could be on the line. It is very important that the provisions on citizen's arrest be clear so that these security guards are in the best position possible to protect businesses and the property of the merchants.

The new provisions on self-defence will also help these guards enforce the law, because the current provisions are too restrictive. Many security guards have told me that when they intercept an individual who committed a criminal offence, the individual generally becomes aggressive and does not want to be arrested by the security guard on duty. For a number of reasons, that individual will simply be asked to leave the premises, because the guards do not want to risk their safety or the safety of others. They would not want to risk being tried for assault. As a result, the individual who commits the crime gets away with it.

In summary, we support this bill at second reading so that it can be sent to committee and some of its provisions, which are quite complex, can be examined in greater detail. That is why the opinions of experts and legislative drafters will be key in the examination of some provisions of this bill. I would like to emphasize the importance of not limiting the debates, as the Conservative government has a tendency to do. I am asking the Conservative government to let parliamentarians do their job properly.

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.

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.

Business of the House

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

Mr. Speaker, this is here for law-abiding Canadians week.

This afternoon, we will continue debate on Bill C-26, the Citizen’s Arrest and Self-defence Act. If we finish that before 5:30, we will get back to Bill C-4, the Preventing Human Smugglers from Abusing Canada’s Immigration System Act.

We will conclude here for law-abiding Canadians week tomorrow, with third and final reading of Bill C-10, the safe streets and communities act. I expect the vote will be deferred until Monday before the bill moves to the other place where I am sure the senators will deal with the bill swiftly in keeping with our commitment to Canadians to pass the bill within 100 sitting days.

I noted the offer from the member for Mount Royal, which appears to be at least somewhat endorsed by the opposition House leader, and I will propose a motion in response, hopefully later today, that can address the amendments in question.

Monday will be the final allotted day for the supply period, which means that after debating an NDP opposition motion all day we will also be dealing with the supply bill that evening. I understand that the NDP has removed all its opposition motions from the order paper so we really have no idea what we will be debating that day. The House will have to await word from the NDP.

I am pleased to announce that next week in the House will be democratic reform week. During this week, we will be debating bills that are part of our principled agenda of democratic reform, specifically bills that would increase fair representation in the House of Commons, reform the Senate and strengthen Canada's political financing regime by banning corporate and big union loans.

The key part of democratic reform week will be Tuesday with report stage debate on Bill C-20, the fair representation act, which seeks to move Canada toward the democratic principle of giving each citizen's vote equal weight. I thank the procedure and House affairs committee for the consideration of this important bill. Report stage debate will continue on Friday, December 9.

On Wednesday, December 7, we will resume debate on Bill C-7, the Senate Reform Act , which seeks to give Canadians a say in who represents them in the Senate and limits the terms of senators. If more time is needed, which I hope will not be the case, Mr. Speaker, we will continue that debate on Thursday morning.

Filling out our democratic reform week agenda, on Thursday, we will start second reading debate on Bill C-21, the Political Loans Accountability Act. It is a bill which seeks to close the loophole which allowed wealthy individuals to bankroll leadership campaigns, thus circumventing the legal contribution limits.

Finally, there have been consultations, and in the interests of having members of the House use their place here in the forum of the nation to draw attention to an important issue that knows no party divisions and to encourage Canadians to sign organ donor cards, I, therefore, move, seconded by the Minister of Labour:

That a take-note debate on the subject of the importance of organ donations take place pursuant to Standing Order 53.1 on Monday, December 5, 2011.

Citizen's Arrest and Self-defence Act

[Kevin Lamoureux, Liberal, Winnipeg North, MB]

Mr. Speaker, I agree with the comment by the member for Kitchener—Conestoga. I think his point is this is a bill that he would like to ultimately see passed, even if there is a need to make some changes, and the government is open to some changes at committee. That is the reason why we want to listen to what people might have to say on this. Those are the types of encouraging words that members of the opposition like to hear for the simple reason that if the government is true to those sentiments, it means we have the opportunity to improve the legislation if it is deemed necessary.

We have some concerns with the legislation, but we are very supportive of the principle of it. We talk about individual cases. One member talked about a snow blower that disappeared out of a garage. Another member made reference to golf clubs. True to form, I have had two bicycles disappear from my garage over the years. There are many different crimes and some are less severe. Having a bicycle disappear is disappointing and disheartening. We feel violated in the sense that someone has walked into our garage in broad daylight and has taken our property.

An individual who works for me, Henry Celones, is a wonderful man. He just turned 70 and he does a lot of walking. One day early in the morning he was walking around the area of Sheppard Street and Jefferson Avenue when he was approached by two larger individuals. Now Henry is a small guy. He is no bigger than I am. These two people told him to hand over money or cigarettes and he felt quite intimidated by this. One of them started to reach toward him. It is amazing how Henry was able to respond and defend himself. Both men in their late twenties or early thirties were tall, but they were literally taken to the ground by Henry. We shared the story with a few others who said, “Good for Henry, he did the right thing by defending himself”. There are those different types of extremes where some crimes are petty, but other things could be life threatening. People respond in different ways.

We have talked about a store that is robbed, then a period of time elapses and the individual comes back. This is a person's livelihood. Should people not have the right to protect their property? The vast majority of Canadians would say absolutely, that people have the right to protect their property and livelihood. I do not think anyone would question that right.

There are issues related to what is reasonable and what is not reasonable. We have to look at situations on their individual merits and then make that determination. That is why, in good part, we have our court process.

Bill C-26 in essence complements our law enforcement agencies. It is not there to say that our police forces, whether it is RCMP or local policing units, are not doing their job. They are doing a wonderful job, in terms of protecting and making people feel safe and secure in our communities, given the resources they have.

When I was a bit younger, a number of years ago, and in university, one summer I was employed to canvass the community. I had to go door to door and ask about issues like community safety. I can remember that in older communities, people would say that they remembered when Ralph, an officer of the law, used to walk up and down the streets. He knew the individuals who were causing the problems and he was able to provide a sense of security.

Then we evolved away from the community policing that Canadians respected for many years. We started to get more individual police officers in police cars because of suburban growth and things of that nature. We have seen more of an investment in the number of officers, and in many communities today, we see that more policing is actually being supported through having more police officers and, ultimately, more community police officers

When I look at the future, I think we need to invest more into community policing, because I think that is the best way for us to enable citizens to be more involved in our communities. I would suggest that citizens do want to get involved. There are many examples of citizens' wanting to be involved. The bill today is just one of those examples.

I could talk about concerns raised in the area I represent. Out of the blue, out of goodness, a number of individuals said they wanted to form a group to walk up and down some of our streets in some of our communities. These are citizen action groups. There is nothing wrong with that. Individuals who take that kind of action should be applauded. They wear bright vests and are well identified. They are not vigilantes looking to cause issues or problems. They are just more concerned about our communities. They are watch groups. They all play a role.

What is really encouraging is to see our law enforcement officers supporting those groups. Part of that support is through providing education on what we can or cannot do. When we make a citizen's arrest, we do have to be careful. We have to size up the situation. Is it situation we really want to get directly involved in? Is there a better way? Maybe there might be a community police office nearby; maybe we would recognize a particular individual in a store, identify that person to the local police office and resolve it in that way, as opposed to making a citizen's arrest.

I can tell members the story of what happened to a lady in an office right beside my constituency office. She was robbed and stabbed in the neck by a young offender. She recognized the person who committed the crime. Instead of running out of the store and trying to administer a citizen's arrest, she stayed in the store and contacted the police. After a while the police got to the store; it took them a little while, but they got there. Because she was able to describe the person and even point out the person's house to the police, proper actions were taken. The youth was taken into custody. Hopefully we will see some justice with regard to that particular issue.

I would suggest that this person made a good decision in this instance. It was an appropriate thing to do. That is what people have to look at when they are faced with the necessity of taking action because their property is threatened. In this case it was not only property but, to a certain degree, her life as well. She was stabbed; she had to go to the hospital and have stitches. She had taken a personal assessment of the situation and had made the determination that the best way to deal with it was to contact the police.

However, sometimes that is not the way to go. Sometimes it is necessary for someone to—

[Matthew Dubé, NDP, Chambly—Borduas, QC]

I would like to thank the hon. member for his comments, which are very fair. If the issue the bill addresses is so complex, it is because there seem to be nuances in every case. Each case has a certain complexity. No two cases are identical. If every member of the House were given the opportunity to speak about this bill, we could hear hundreds and even thousands of different stories.

That is why it is very important to hear from as many people as possible within the specified time period. It is very important to hear from all the parties, to hear the comments of both academic legal experts and ordinary citizens, and to give the people we represent here in the House a chance to be heard.

In this way, Bill C-26 will enable us to live in a society where we are safe, and where we can protect ourselves but do not take the law into our own hands by deciding to act like police officers. The goal is to make our communities safe and we want to work together to achieve that goal.

[Matthew Dubé, NDP, Chambly—Borduas, QC]

Mr. Speaker, the Lucky Moose case is interesting and shocking; however, I must admit that, quite frankly, this bill is the first opportunity I have had to really understand what happened and the problems that Mr. Chen had with the law. Mr. Chen lives in my colleague's riding of Trinity—Spadina. I think that the intentions of the bill that she introduced during the 40th Parliament are more or less identical to those found in Bill C-26, which we are discussing today.

I think there are two important factors to consider. We are talking about the power to make citizen's arrests, as in Mr. Chen's case, but I also think that we have to qualify that. Mr. Chen is the owner of a local business that does not necessarily have the money for insurance or security the way a big business such as McDonald's does.

The members of the NDP—and I am sure the members opposite will agree—believe that this is one very important aspect. We want to give ordinary citizens, particularly entrepreneurs who are at risk of becoming the victims of such crimes, the ability to defend themselves. That is very important. However, there is also another factor to consider, and that is the fact that we all live in a community, we all have the right to protect ourselves—at least we should have it—and we all have the right to help and protect each other.

The hypothetical example that came to mind as I read this bill and thought about it was that of seniors in my riding. There are many seniors in my riding and we know that they need help with many aspects of their daily lives. This is the perfect example because, if a person wants to help someone in need but is not certain of the provisions of the Criminal Code, it becomes very difficult and worrisome for that person to help. We should not have to worry when we find ourselves in a situation where we want to help someone in a reasonable manner, as mentioned in the bill. Once again, the word is “reasonable”, and it is used again and again; I will come back to this point a little later.

I think that is what is important. To go back to what the hon. members for St. John's East and Mount Royal said, we have to truly find a way to create clear legislation when we are talking about citizen's arrest, defence of property and self-defence. As the hon. member for Welland said—it seems we are all essentially in agreement—we want to have clear legislation to ensure that the defender acts swiftly in an urgent and critical situation. We have to avoid the situation where the person wonders what is in subsection 494.2 and how it will affect them. People should have the power to react.

That being said, I think we have been quite clear on this side of the House, that this has to be done within reason. I am not a legal expert, but it is common knowledge that the term “reasonable” is well defined in the legal field. It is everything considered reasonable by any reasonable person. That is usually what it means. Hon. members with law degrees will correct me if I am wrong or add clarification. With a bill like this one, we want to be certain that it not only includes these terms, but that they are understood by the public.

We have a perfect example when we look at the self-defence or defence of property provisions.

I would like to take this opportunity to quote the Supreme Court ruling in R. v. McIntosh, where Chief Justice Lamer said:

...ss. 34 and 35...are highly technical, excessively detailed provisions deserving of much criticism. These provisions overlap, and are internally inconsistent in certain respects.

This is very important because it shows us that even the Supreme Court of Canada justices are unable to fully understand the Criminal Code. Hence, it would certainly not be clear to an individual who is not necessarily a legal expert, especially, as I mentioned, if they were to find themselves in a dire or urgent situation where their life was potentially in danger.

What is being proposed is fairly straightforward and clear. This has been said many times and I will repeat it. We must allow experts, victims and lawyers to thoroughly examine this in committee. I know that most of my hon. colleagues who sit on the Standing Committee on Justice are lawyers or are quite knowledgeable about the law. Like my colleague from Welland, I am very pleased to see that our colleagues opposite feel the same way.

We also want to study this bill because we want to ensure that the bill is clear, not just so we have the right to defend ourselves, as I already mentioned, but also so that we do not get caught up in what I call the “Clint Eastwood phenomenon”, where we all become cowboys acting in self-defence. By defending ourselves, we end up causing more harm than good. We all assume the role of police officers. That would go against what we believe to be the purpose of this bill. Once again, we come back to the term “reasonable”. I believe this concept will be very important.

A few years ago, there were some cases of home invasions in Quebec—in Brossard and Montreal's West Island—that received a great deal of media coverage. In these highly documented and very revolting cases—which sometimes had tragic consequences—there was a great deal of reporting and commentary, by both the media and the public, as to the fact that it was not clear. We must be in a position to fully understand our rights and the restrictions in order not to have to think in such circumstances and to be able to defend ourselves. We also have to agree that, in some cases, we must use some judgment.

Let us take the hypothetical example of a couple. The man pushes the woman and she attacks him very violently, in a way that could be classified as too violent, excessive or unreasonable—to use that term again. However, we do not know the history between them.

We must really take the time to study the bill to ensure that in specific situations, such as ones where there is a known history, measures are in place to ensure that police officers and judges can take adequate and appropriate action.

The work we do in committee is very important. We are talking about experts. I am not a legal expert and many of my colleagues are not, either. That is where our responsibilities as parliamentarians become very important, both during debate in the House and in committee. We must make good use of the resources available to us. Those include not only legal experts, but also victims and people who have experienced serious situations, like Mr. Chen. Although this was a very high profile and surprising case, there must certainly be other circumstances that are similar.

I must talk about another aspect. I mentioned seniors, but there are other groups too.

I am not entirely familiar with Mr. Chen's case, so I will be careful about what I say. In his case, there was some racial profiling, as happens in other ethnic communities.

Mr. Chen belongs to an ethnic community and he was charged with kidnapping, when in reality, he was simply defending his business. Making the bill more specific gives police officers tools so that they will be less likely to judge or accuse people who act in this manner.

I find it unfortunate to have to raise the next point, but since my colleague from Welland already did, I would like to take the opportunity to do so now. Since the beginning of this parliamentary session, work in committee has been very rushed, as have our debates in the House of Commons. That is too bad, since we talk about the bills.

Let us take the example of Bill C-10, which has to do with the Criminal Code. There is no doubt that this is a very complex issue.

We should have been taking advantage of these opportunities, both in the House and in committee, and deferring to the expertise and wisdom of our colleagues. As we all know, the hon. member for Mount Royal is very knowledgeable in this area, as are many other members. We should be taking advantage of our colleague's knowledge in order to fine-tune this very complex matter. Indeed, the Criminal Code is very complex. It is full of nuances that we need to pay attention to. That is what we are looking for.

The NDP's position is very clear: we want to find the nuances. We want to defend victims, but we also want to ensure that the measures are reasonable in that regard. That is where the nuances become important.

In the clauses of the bill, some examples talk about timeframes. In the case of Mr. Chen, the time that passed between when the crime was committed and the citizen's arrest was too long.

We need to have some degree of flexibility. However, we must also ensure that if a business owner thinks he or she recognizes someone who committed a crime 10 years ago—someone who stole candy in a corner store, for instance—that individual cannot be arrested. Business owners are vital to the local economy and must be able to defend themselves.

As MPs, we all go through these kinds of situations. My colleague's riding of Welland is half urban and half rural. Earlier he talked about cuts to police services. We have to remember that rural areas are not the only areas with more limited services. My riding is considered to be located primarily in the suburbs, and we are experience the same thing. In some cases, different municipalities are even sharing police officers. The municipalities do not necessarily have the same resources, so they are sharing them in order to provide better services.

That happens in some cases, but in others, when something is considered more urgent, the police forces focus on that, and rightly so.

At other times, there is no chance to benefit from these advantages. I can think of a few examples, such as petty thefts committed in small, local businesses.

In those cases, the response time can be quite long, at least in my experience and in others' experiences. That is where the problem lies.

Given that our police officers work very hard and do not necessarily have the resources to do everything they would like to do, we all have to help each other.

I also mentioned that we have to be careful that we do not all become police officers. We have to consider other aspects, including students who work part-time at a store to pay for school.

If a thief enters the store, public pressure—if I can use that expression—should not make the clerk feel forced to intervene.

Although we have the right to make a citizen's arrest, we also have the right to protect ourselves and to not necessarily intervene in a potentially dangerous situation.

To come back to this example, pressure might come from colleagues who feel pressured by the boss. The legislation should not be drafted in a way that a person feels pressured by his or her boss, a store owner for example, to intervene at all costs. That would not be appropriate.

As I was saying earlier, this would cause more harm than good in some circumstances. It is not worth risking one's life for a petty theft. Everyone agrees that life is priceless.

What is more, we must not lose sight of the fact that many situations are hypothetical. That is the problem. Not all of us have experienced what Mr. Chen went through, but the important thing is peace of mind, as I was saying earlier. We all share the desire to live free from such concerns in our communities.

I want to mention the Supreme Court's decision once again. There was also a problem in that case. However, cases involving a citizen's arrest are usually much more straightforward. If someone is caught in the act of stealing from a corner store, the case is fairly black and white. The person was apprehended while actually committing a crime.

Cases involving self-defence are harder to judge. Earlier, I mentioned cases in which we are less aware of the previous history.

The way in which the incident is reported to the police is also important. To use an example that is something of a cliché, a person who is in a dangerous neighbourhood or an area that is less safe gets attacked. That person would then exercise his right to self-defence.

He may defend himself and then run away. He calls the police because, clearly, he would not wait there with the attacker against whom he just defended himself. Clearly, he had to run away and think about his own safety.

Later, depending on how the facts are reported, the police will have to use a certain amount of judgment, and they are very qualified to do just that.

However, our responsibility as parliamentarians is to provide the tools need by both the police and judges—when the time comes—to exercise that judgment.

It is thus very important to work together to ensure that all the nuances are clearly understood. Together, we can come up with a very good bill.

[Malcolm Allen, NDP, Welland, ON]

Mr. Speaker, I am pleased to join the debate on Bill C-26, albeit not as eloquently perhaps as my colleagues before me since I am not a lawyer. I know they have billable hours, but I am not sure if they have billable words. Nonetheless, it has been very insightful to listen to folks talk about what is and is not codified in law, subsection this and that. However, for lay folks living in communities, they do and have seen the reality.

Fortunately, my family has not gone through the trauma of someone breaking into our home. Someone did make off with my brand new snow blower last year, but it was in the shed. They did not break into my house, just my shed, but twice they broke in and made off with the snow blower and other sundry items. This did not affect me or my family personally as we were not there. I am sure the dogs barked like crazy, but they were in the house. The snow blower is out there somewhere in this country and someone is using it quite happily I guess.

Although I was joking earlier about billable hours and billable words, clearly there is a delicate balance of these difficult aspects. We are trying to balance the needs of those folks who are victimized by someone breaking into their home or assaulting them, with what my colleagues term, reasonableness. As my colleague for Edmonton—St. Albert said, eventually the issue would be determined by fact, which then becomes making a determination.

Clearly, there are difficulties in the present law, such as in the R. v. McIntosh case. When the rendered judgment came back to us, the lawyers said it was more muddied than before. What people thought may have been a clarification, for the legal profession, it became a muddied place.

If it is a muddied place for those folks who work with the Criminal Code on a daily basis, whether they be lawyers or judges, what is it for the rest of us who do not study the law? For those of us who may be trying to make a citizen's arrest or something in self-defence, how do we determine what is a reasonable or unreasonable act?

This reminds me of the old adage: if one can flee, then one should flee. It there is an opportunity to get away, one should, in some cases, rather than fight. We need to take that into consideration.

I am not for a moment suggesting that this amendment to change the legislation tries to suggest that somehow one should fight more often than flee. I simply raised this so that folks would keep it in mind when they find themselves in a position where they are present during a break and enter or a violent act is committed against them. There are times when if one can get away, one should just simply get away and call the appropriate authorities. Unfortunately, there are moments in life when that is not going to be the case and one has to take into consideration how that can happen.

There are instances dating back to the 1100s in English common law where a citizen's arrest was allowed. Therefore, this is not a new practice. The legislation being brought forward by the government is certainly not a new practice. It seems to be an attempt to clarify the waters that we presently have with the present act or code as to what exactly it is.

The member for Trinity—Spadina in the last Parliament brought forward somewhat similar legislation, albeit not quite the same. It talked about the incident in her riding with Mr. David Chen. Many of us will remember that he had arrested someone who had burglarized his store on multiple occasions. Mr. Chen made a citizen's arrest and then was charged himself for forcible confinement, kidnapping and all manner of charges. Fortunately, most of those charges were dropped and eventually he was acquitted.

We do not want to see another Mr. Chen or Ms. Chen somewhere down the road going through that experience. All Mr. Chen wanted to do was protect his property and make what turned out to be a reasonable citizen's arrest. The perpetrator eventually pleaded guilty to stealing from Mr. Chen and spent 30 days in jail. Clearly, Mr. Chen, in a reasonable way, had tried to stop the person who had been victimizing his property by stealing from him on numerous occasions.

It seems the gentleman who was stealing from Mr. Chen felt like he was a regular customer, except he never paid for anything. He simply would take what he needed. I guess he thought he had an account and would pay it off later, but clearly, that was not true.

How do we balance those things in the legislation that comes before us is the trick.

I am heartened by what I heard from the government benches, that those members want to take the time to listen to experts, to victims and folks who have great expertise in this area. They want to sit down and find a balanced law that will defend the rights of both sides. There are rights on both sides of this issue. There are the rights of those who have taken reasonable grounds to protect property and persons, themselves and their family, and there are the rights of the accused. Ultimately, making a citizen's arrest is simply allowing one to say that a person is accused of something. It is for the courts to decide, not those who make the citizen's arrest, whether someone is guilty of a particular offence.

We have to strike a balance. We cannot have more Mr. Chens where a regular law-abiding citizen in the due course of his business is victimized and then finds himself in a predicament where he has to hire a lawyer and go to all that expense, as well as the trauma of going to trial, for doing what he thought was a reasonable thing.

It strikes me that when the government is saying it intends to do something, I am not too sure why we did not do it in some of the other aspects. Bill C-10 is a prime example. The member for Mount Royal brought forward some amendments to Bill C-10 in committee. The government did not deem them to be worthy enough or was not interested enough at the time, and said no thanks, which is the government's right to do. Unfortunately, the minister brought ostensibly the same amendments forward and was ruled out of order because it was too late because the government had cut off the time available to make any reasonable amendments.

If the government believes this is worthy of study, and it is, I would suggest that when we work on big pieces of legislation such as Bill C-10, that they are also worthy of the same type of consideration, analysis and due process. We should go through them item by item.

Here we have one single solitary bill, Bill C-26, that speaks to one aspect of the law, not multiple parts. It speaks to citizen's arrest and what a reasonable person is expected to do.

I know it is hard for some of us to define what is a reasonable person. My colleagues, the member for St. John's East, the member for Edmonton--St. Albert, and the member for Mount Royal,, have engaged in these things in their previous careers. Lawyers and judges of this land find it hard to figure out what a reasonable person ought to be allowed to do, but by the right of sitting on the bench or being called to the bar, we give them that right and then we live by their decision. That is how we have the rule of law.

Ultimately it is about ensuring we find a balance. It gets to the very point of why we need to do it.

We have seen things happen in the past that some of us would say were egregious against those who we see as the victim. People have been assaulted, or mugged, or their houses have been broken into while they were sleeping, as we pointed out in a couple of examples. How do we find a way to say to people that they can protect their property and family if someone comes through the door of their house or steals from them? How do we determine how to do that? That is the balance ultimately all members should try to define.

Members on either side of the House do not want to victimize a victim. That is the essence of what we are saying to Canadians. We understand they have been victimized once already and because of a law we have the powers to change and enact, we do not want to victimize people once more. That is a fair thing to want to achieve.

As my colleague from St. John's East said earlier, the law has been there for over 100 years. It has been debated and decisions have been rendered to help build a body of decisions which the courts and the law profession can look to, to indicate when something is reasonable or not. As the government quite rightly has pointed out, it has been skewed in a few instances where folks are uncertain. If the courts are uncertain, how is the average person who is not in the legal profession supposed to understand what he or she can or cannot do?

If someone came through the door of our house, in a moment of an adrenalin rush we would not necessarily think about what the courts would say, or what the law says, or what section 494(1) says about when someone breaks in to a house. Folks know how to act in a responsible way to deter a person or persons from entering their home and they need to do the things to protect their children, their loved ones and their property. In my case I would have a couple of big dogs outside and I would lock the door. That might be a reasonable enough deterrent to discourage a teenager from breaking in because he or she would not want to be bitten by the dogs.

It may take a physical intervention by the person or persons who would want to restrain the offender. Most of us understand how to act in that moment of what could be described as panic, in a reasonable and responsible way. Ultimately, that is what we are trying to confer with the legislation, but that is why on this side of the House, as my colleague from St. John's East said earlier, we want to send the bill to committee and government members want to do likewise.

At committee we can study and have folks speak to the bill so that when we eventually pass the bill, victims who act, as is their right, as citizens to make an arrest or defend themselves in a legal way, will know that they will not face being charged. That is the balance we are trying to find. I welcome the government taking that opportunity with us to find that balance, because we do not want to have the waters just as muddied as they are now. Even the judicial branch is saying it is not helpful if it is muddied. Heaven knows, if the judicial branch is saying it has difficulties with it, then what are we to make of that. Clearly, as we go down that road, it is important to work to get the legislation right.

I would hope my colleagues on the justice committee would take their time and make sure we actually get it right. In haste, we can get it wrong. We will be doing a disservice to folks in the broader community if we rush it through simply because we think we have it right.

As my friend and colleague from Edmonton—St. Albert said, this is a balance. It is always the most difficult thing to do in life. We all remember when we were young, sitting on a teeter-totter with someone we hoped was of about equal weight or at least who did not get off the teeter-totter before we did, letting us slam to the ground.

One would hope we could find that scale of balance, so that it does not tip in one direction or the other. I know the government wants to find the balance between the rights of those who find themselves in those precarious situations when they are under threat of harm or threat of their personal property being taken from them, and they want to take that opportunity, as is their right under the law even at present, to protect themselves, their loved ones and their property.

Our party's critic has said that we welcome the opportunity to send the bill to committee after second reading, because we believe we can help the government make this good legislation. The Prime Minister has said on numerous occasions, “If you have good ideas, we welcome them”. With this bill, we have some good ideas.

What I am hearing from the government side this morning is that this may be a time when, I would not go so far as to say we would join hands, we find ourselves singing from the same hymn book on this legislation. We will have some good suggestions and we hope the government will be open to those good suggestions. We could eventually find that this is a piece of legislation which members of the House have worked on together and which the House can then pass. We could say to the folks that we worked on this legislation together for all of them because it was important to them.

It may have taken a bit of time for us to get there, as quite often happens. Sometimes we have to build a body of evidence in law and see decisions to finally realize that what we thought was working reasonably well no longer is working. I think the government recognizes that we have come to that point, and I congratulate it for recognizing that.

My colleagues on the justice committee will be pleased with what we heard from the government this morning, that it welcomes the debate, and it welcomes bringing in experts to make sure that we find the balance that all of us are seeking.

This can be a good piece of legislation if we take the time to study it, if we take the opportunity to listen to each other. We need to build a piece of legislation that truly meets the balance of our broader society and the citizens across this country.

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

Mr. Speaker, I am not sure that I fully understood that question. What I said in my comments was that the bill before the House, Bill C-26, clarifies the existing provisions, specifically sections 34 to 42, which create a rather complex and convoluted set of circumstances with respect to when reasonableness in defence of property would apply, depending on whether it is real property or personal property. This bill aims to, and I think succeeds in that aim, clarify when the defences of property and person would apply.

The member made some reference to Bill C-10 that I did not quite understand. However, certainly this bill fits in the entire umbrella philosophy between this bill and Bill C-10 in that the government continues to stand up for the rights of victims. This bill fits into that umbrella because when victims of crime take measures to defend themselves or to defend their property, as long as they act reasonably they ought to have the protection of the law.

[Hélène LeBlanc, NDP, LaSalle—Émard, QC]

Mr. Speaker, I thank the member for Edmonton—St. Albert for his presentation and clarifications. Reasonably discussing Bill C-26 presently before the House is a very good exercise and I really appreciated his presentation.

I understood from his presentation that he has a legal background. He mentioned that just for this special provision in this bill the Criminal Code is very complicated and complex. I want to compare and contrast that with Bill C-10 that we just passed at report stage in the House, which contains many provisions of the Criminal Code. Why did we not have the same approach in breaking down Bill C-10 as we are doing right now with Bill C-26?

[Lysane Blanchette-Lamothe, NDP, Pierrefonds—Dollard, QC]

Mr. Speaker, earlier, my colleague said that we would support this bill at second reading so it can be studied in committee. He also said that we had to ensure that we did not encourage vigilante justice or excessive force.

Does my colleague think that we should perhaps modify the wording of Bill C-26 to ensure that it does not open the doors to using force to protect oneself against theft or to having people take the law into their own hands and perhaps misinterpret this law, which could lead to things we would not want?

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

Mr. Speaker, it is an honour for me to rise and add my contribution to the debate regarding Bill C-26, An Act to amend the Criminal Code (citizen's arrest and the defences of property and persons).

Bill C-26 will clarify for Canadians how they may respond to immediate threats to their property or to any person and the criminal acts necessitating urgent arrest situations.

Many members of the House will be familiar with well-publicized stories about Canadians being charged with crimes arising from situations where they were defending themselves, their family or their property. We can all imagine cases where people charged with a violent offence would claim that they had used violence to defend themselves without that necessarily being the true story. It is also likely that, from time to time, someone would use a minor threat or insult as a pretext to launching a violent attack against another.

We want to ensure that our laws do not allow for such cases, because if this were so, many innocent Canadians could be victimized with no repercussions against the wrongdoer.

On the other hand, the law must also provide greater clarity for force that is authorized and must set out the conditions which the aforementioned defensive action is acceptable. It is these very conditions that distinguish between revenge and genuine defence and between reasonable and unreasonable conduct.

Bill C-26 would extend the power of citizen's arrest in relation to property offences and would clarify the laws of self-defence and defence of property. These reforms are first and foremost about ensuring that Canadians understand the law in this area and that they are able to defend their vital interests and apprehend wrongdoers.

They are not required to stand by and watch their property be taken or destroyed or a stranger get assaulted. When the police are not around, Canadians need not be helpless. They can help themselves and their fellow citizens and, where necessary, assist in bringing wrongdoers to justice.

The reforms are also intended to assist police officers and prosecutors who exercise their discretion on a daily basis in respect to the charging and prosecuting, so as to minimize criminal charges being laid in situations where a defence is clearly available. Clarity in the law will hopefully weed out the cases of reasonable action, which need not result in criminal charges at all, and distinguish them from cases where there are discrepancies in the accounts given by witnesses, or where the threat posed was small, relative to the harm or injury caused. or other cases where there is some uncertainty about the reasonableness of the actions that were taken.

Finally, clarity in the law will help speed up trial process when charges are genuinely justified. It will also reduce unnecessary appeals and save precious time for our admittedly overworked court system.

How will Bill C-26 accomplish all of this?

First, it makes a modest extension of the existing power of citizen's arrest in the cases of property crime. Right now people can only arrest another if they find the person committing an act. This means that if there is no opportunity to arrest at the very moment, say for instance because the thief is faster and runs away, but there is an opportunity to arrest at some reasonable time afterwards, the law currently says that the arrest is unlawful. One literally has to catch the person in the act under the current law. This applies to people who try to bring to justice people who have committed an offence on or in relation to their property and stand to be charged and potentially convicted of a serious Criminal Code offence that they may have committed in the course of apprehending the suspect under those circumstances.

I hope all members can agree, and it sounds like all members do agree, that allowing people to arrest within a reasonable time of having witnessed a crime makes good sense. We do not want to criminalize otherwise law-abiding citizens and business owners who are trying to protect their property from thieves and mischief-makers. We know that situations occur where the person observed to have committed an offence returns to the scene of the crime or is seen elsewhere and can be easily identified. Arrest should also be possible in these limited circumstances.

Let us be clear that this proposal is a modest extension of the existing law. However, I know some Canadians are concerned that the proposed expansion of citizen's arrest powers will encourage vigilantism, but I do not agree.

The law of citizen's arrest already contains a very important safeguard against the arrester using the laws for improper purposes. The safeguard is a requirement in 494(3) of the Criminal Code, which states:

Any one other than a peace officer who arrests a person without warrant shall forthwith deliver the person to a peace officer.

This requirement ensures that a citizen's arrest becomes a matter of police attention as soon as is possible.

A new safeguard against vigilantism is included in this legislation, Bill C-26, in relation to the expanded powers of citizen's arrest. A person would now be able to arrest someone who they have witnessed committing an offence in relation to property within a “reasonable period of time” after the offence was committed.

However, where a person seeks to use this expanded power as a precondition, he or she must first determine whether it is feasible for a peace officer to make the arrest instead. There would now a double safety net against abuse of arrests where the arrest happens at some point in time after the original offence was witnessed.

The citizen arresters must turn their mind to the possibility of the police making the arrest. If they determine that under the circumstances that is not feasible, once they have made the arrest they must contact the police as quickly as is practicable and turn the suspect over.

Of course, the overarching rules with respect to using force during an arrest continue to apply. These rules ensure that a person making an arrest can use force but any such force must be reasonable in the circumstances. If the suspect willingly submits to the arrest, then no force is necessary. If he or she resists, then some force may be called for but the force must still be reasonable under the circumstances.

Excessive force, is, by definition, not reasonable. Deadly force, whether used by the police or by the citizen, can only be justified where human life is at risk. These rules are clearly set down in section 25 of the Criminal Code. Bill C-26 makes a reference to section 25 so that it is clear to everyone which rules apply.

This legislation would not increase the potential for vigilantism. The government discourages vigilantism. Bill C-26 is designed to allow citizens to protect themselves and their property only when police are not able to do that for them. It strikes a reasonable balance.

Bill C-26 would do more than increase the period of time in which a citizen's arrest can be made. A citizen's arrest situations often overlap with the defence of property, so Bill C-26 would ensure that the law governing the defence of property is clear and effective.

Currently, the defence of property is set out over five provisions that make many distinctions between slightly different circumstances, such as where the property in question is an object or land.

There is no need for different variations covering different cases when they are all based on the same general principle, that people should not be held responsible for a criminal offence if they act reasonably in an effort to protect property in their possession from being taken, damaged, destroyed or trespassed upon.

Bill C-26 would replace all of the existing rules with a single general defence that is capable of being applied to any type of property defence situation.

I must admit that I read the existing provisions just prior to standing up in the House and they are complicated and complex. I had a difficult time applying each rule to a specific fact situation. This is why Bill C-26 clarifies the rules with respect to defence of property. This is precisely the sort of simplification that will help the police gather evidence and make decisions or recommendations about whether criminal charges are appropriate. It is also the kind of simplification that Canadians need.

Property disputes often arise when someone is doing something unlawful, such as stealing a car or breaking into a house, but the defence can also arise in cases of genuine property disputes involving people who are all behaving lawfully but simply disagree about which of them is entitled to a particular item of property and what exactly they are allowed to do or not do with it.

For instance, disputes over access to a right-of-way or over where the a boundary is between two houses can and do lead to violence, just as conflict between a property owner and a thief or a criminal intruder can. The defence of property can apply to all these situations.

For that reason, it is inescapable that matters of property law must inform the criminal defence of property. That is why the defence of property is premised on the concept of “peaceable possession” of property. This concept has been interpreted by the courts to mean that the possession of property must not be seriously challenged by others. The seriousness of the challenge is assessed by looking to whether the challenge to the possession is likely to result in a breach of the peace. Of course, anyone who actually possesses property in circumstances that would involve a breach of the peace, such as protestors occupying a government building, should not be entitled to use force to defend their possession of that property in that circumstance.

Another aspect of the law that Canadians should know is that our courts have consistently held that intentionally causing death in defence of property alone, as opposed to in the defence of a person, is never reasonable. This principle is founded on the greater value to our society and to the value that it accords to human life over the value accorded to property. I am sure we can all agree with this reasonable approach. Nothing in this approach limits the availability of self-defence, which is the other defence that would be simplified by Bill C-26.

Any situation that creates a reasonable perception of a threat to a person, and this would clearly include a home invasion, or could even include a carjacking and other types of situations, gives rise to the ability to defend the person being threatened. Deadly force is permitted in defence of the person but, of course, as always, it must be a reasonable response given all of the circumstances.

The proposed new defences in Bill C-26 would capture the essence of the current law but in a much simpler way. The new laws would clearly and simply set out the conditions for a defensive action.

First, there must be a reasonable perception of a threat to property that someone possesses. Threats to property can involve threats to damage or destroy the property or to somehow render it inoperative. It can also include threats to enter certain types of property without lawful position, such as dwellings or other buildings or even a vehicle.

It is important to note that people can be mistaken about the threat that they perceive. What matters in these cases is whether the mistake was one a reasonable person could also make in identical circumstances. We cannot take away a defence where a person behaved reasonably and perceived the situation in a reasonable manner, even if the person were factually mistaken.

However, on the other side, if people make an unreasonable mistake, that is to say, if they fall below the standard of reasonable action and perception, they would lose the defence.

My friend from Vancouver Kingsway talked about the importance of the concept of reasonableness and the reasonable man in both civil and criminal law. I agree with his interpretation and its importance to both these situations and to this legislation.

The second element of the defence is that the person must genuinely act for a defensive purpose. Defence of property can never be a pretext for revenge. If the person does not really care about the property but to use the other person's threat as an excuse to assault him or her, the law would not justify that conduct.

Third, whatever actions are taken for that defensive purpose, they must be actions that a reasonable person in the same circumstances could also have contemplated and taken.

There is no way to describe what reasonable actions are because what is reasonable to defend a particular item of property against a particular type of threat is likely to be different from actions that could be reasonable to defend other property from a more or less serious type of threat. That is a very long sentence to say that these situations are all fact specific. It all comes down to the circumstances of each case.

These conditions are easy for Canadians to understand. They should also be relatively easy for the police to assess and juries as well, if charges are appropriate. Canadians will understand that they must genuinely be acting to protect property and not acting to take revenge against someone. They should also understand they must conduct themselves within socially acceptable standards within which a range of conduct is likely to be reasonable. As long as Canadians bring themselves within this range, they will be justified in using the force that they need to in order to keep themselves, their families and their homes safe.

Bill C-26 would also bring greater clarity and simplicity to the defence of self-defence. The proposed new defence would also apply in cases where a person uses force to protect a third person.

Today, the Criminal Code says that a person can only defend another person who is “under his protection”. The courts have given this phrase different meanings. It is not as clear as it should be that citizens can defend not just their children or their elderly parents, but they can also defend their fellow Canadians, even strangers, when they come upon them in a situation that presents a grave threat. The bill would clear up this aspect of the law, and appropriately so.

However, the reforms to self-defence would do more than just that. They would simplify the law in other ways and bring a variety of different rules into one single rule that would be applied no matter what the circumstances. The basic elements of self-defence mirror those of defence of property but they are even simpler because complicated property concepts are not involved.

Right now, four separate sections of the Criminal Code set out various versions of the defence of the person, each of which applies in a slightly different set of circumstances. The law simply is way too complicated and confusing. The fact is that such complexity is unnecessary because the basic elements of the defence are relatively straightforward. Bill C-26 seeks to reduce the defence to its core elements.

The conditions for defence of the person under Bill C-26 can be stated relatively briefly. First, the person reasonably believes that he or she or another person is being threatened with force. Second, the person acts for the purpose of defending himself or herself or the other person from that force. Third, the person's actions are reasonable in the circumstances.

As with the defence of property, mistakes can be made by the defending person as long as those mistakes are reasonable. The defending person must genuinely be acting with a defensive purpose and must not be using the threat as a pretext to engage in violence that he or she would otherwise desire to engage in. The reasonableness of the actions taken in defence of the person must be assessed in relation to all of the relevant facts and circumstances.

Bill C-26 proposes a list of factors to help guide this determination. These factors frequently arise in the self-defence context. Factors on this list include: whether any party had a weapon; the nature of the threat the person was facing; whether the individuals involved had a pre-existing relationship, especially if it is a relationship that involved violence or threats; and the proportionality between the threat and the response will be a critical factor in determining whether under the circumstances the defence was reasonable.

These factors are drawn from real cases and from the courts' interpretation of the current law. The purpose behind these provisions is to signal to courts, as well as to police and to prosecutors, that the essence of self-defence is not changing. Reasonable actions under the current law should continue to be reasonable under the proposed new law.

These are the sorts of determinations our courts make regularly. However, by simplifying the law, by clearing away the clutter and putting in the Criminal Code the crucial questions and crucial factors, Bill C-26 would clear the path for them to get straight to the important questions.

The bill would also make it easier for police at the scene of a crime to apply the law before making charging decisions. Bringing clarity to the law will mean that legitimate self-defence actions lead police and prosecutors toward the decision that laying a charge would not be in the interests of justice. In this way, the bill continues to stand up for victims.

The bill is a delicate balance but, as previous speakers have said, this is the appropriate balance to balance the rights of individuals versus the rights of people who cause threat to those individuals or to their property.

[Don Davies, NDP, Vancouver Kingsway, BC]

Madam Speaker, I am pleased to stand in the House today and speak to Bill C-26, an act to amend the Criminal Code (citizen's arrest and the defences of property and persons).

This is an excellent example, an all too uncommon example I would submit, of a government making sound legislation because consensus was sought and achieved with respect to the substance of the bill.

All parties agree with the essence of this legislation. All parties have commented publicly and foreshadowed to the government over the last two years that this legislation would be a positive amendment to our Criminal Code. As I will touch on a bit later in my remarks, that does not mean that certain provisions of the bill do not require careful scrutiny. That, I am sure, will happen at committee.

The bill would basically alter a person's ability to make a citizen's arrest. It clarifies the times when a person is entitled to defend either his or her person or property. These are both positive and overdue steps.

This legislation is an example of good law being made. The government can ensure widespread support when it seeks consensus. That also ensures smooth and timely passage of legislation, which all Canadians want to see as opposed to seeing contentious legislation put forward that eventually gets slowed down, obstructed and criticized heavily.

I want to contrast this legislation briefly for a moment with what I think is the typical and common approach of the government, and that is to generally plow ahead with highly partisan, ideological and often controversial pieces of legislation that do not reflect the majority of support in Canada.

Government members have obviously memorized their speaking lines well. It is a rare day in the House when we do not hear four or five government members stand up and say that they received a strong mandate from the Canadian people for their platform. We know that is political spin and is not correct because we all understand math.

We know that in the last federal election 61% of Canadians voted and the government secured the support of 39% of that 61%. We also know that 61% of Canadians did not give a mandate to the Conservative government. It is useful for the government to keep that in mind. In order for the government to have a positive and successful legislative agenda, it would do well to remember the fact that seeking consensus, as the government has done on the bill, is a much sounder and more democratic way to proceed as a government.

I do want to congratulate the government on this piece of legislation. Our late leader, Jack Layton, valued fairness above all other attributes in political life. He often stated that it is the job of an opposition to propose as well as to oppose, and when we do oppose to do so constructively. He would have been the first person in the House to advocate that we should give credit where credit is due.

In this case, I am pleased to give credit to the government for introducing this legislation. That is not hard to do in this case because the substance of this legislation was really an idea that was proposed by the New Democrats, in particular, by my hon. colleague from Trinity—Spadina. I will talk about that in a moment.

I want to talk a bit about the bill and where it came from. Bill C-26 would specifically amend section 494 of the Criminal Code, dealing with citizen's arrest, to provide greater flexibility. These changes would permit a citizen's arrest without a warrant within a reasonable period of the commission of the offence. Currently, section 494 requires any citizen's arrest to occur while the offence is being committed.

As I go through the history of the genesis of the bill, members will see why the current definition in the Criminal Code has proven to be problematic.

Bill C-26 would do more. It would also change sections of the Criminal Code that relate to self-defence and defence of property currently encoded in sections 35 to 42 of the Criminal Code of Canada. According to the government, these changes would bring much-needed reforms to simplify and clarify complex Criminal Code provisions on self-defence and defence of property. They would also clarify where reasonable use of force is permitted.

I am advised that the current language has been in the Criminal Code for a very long time. I am led to believe it may even be original language or language that certainly is well over 50 years old, or even closer to 100 years old. It is always positive for us as legislators to review language in our statutes to ensure the language is up to date and clear to Canadians.

As we know, it is one of the precepts of Canadian law that citizens are presumed to know the law. In order for citizens to be able to comply with the criminal law in this country, obviously they must understand it.

It is a positive step that we are actually looking at these sections of the Criminal Code. I am not 100% sure that the language in the legislation is exactly what we want it to be. However, I commend the government for putting the focus on these sections. I do think the bill goes a long way, even in its present form, in clarifying those complex provisions.

Half of the bill proposes measures that New Democrats have called for previously through my colleague from Trinity—Spadina's private member's bill which she introduced a year and a half ago. Therefore, it follows that we will support the bill at least at second reading. The part of the bill that we proposed is the part that amends section 494, which deals with citizen's arrest, to permit arrest without a warrant within a reasonable period of the commission of the offence.

I want to make it clear that we must tread a careful line, because expanding the role of citizens to become involved in arrests or to use force to defend themselves or their property is a carefully balanced one. We want to ensure that we do not encourage an unhealthy or dangerous form of vigilantism. The balance between ensuring our citizens have the right to act rationally, logically and reasonably in protecting themselves and their property and doing their part to ensure that criminals are apprehended can be done so in a fair, safe and legal manner.

I will talk briefly about the background to the bill, which is what brought the legislation to the attention of the House.

On May 23, 2009, Mr. David Chen, who is the owner of the Lucky Moose Food Mart in Toronto, apprehended a man, Mr. Anthony Bennett, who had stolen previously from his store. After Mr. Bennett was initially caught on security camera footage stealing from the store, he left the store, but returned to the Lucky Moose one hour later. At that time, Mr. Chen, the proprietor, and two employees apprehended Mr. Bennett. They tied him up, locked him in the back of a delivery van, and called the police. When the police arrived, they assessed the situation and applied the Criminal Code as it currently reads. They ended up, perversely, charging Mr. Chen with kidnapping, carrying a dangerous weapon--a box cutter, which most grocery store workers would normally have on their person--assault, and forceable confinement.

We were left with the perverse situation of a person who was defending his property in his store, who had 100% concrete evidence that the person had stolen from him not only hours earlier but I believe on several occasions in the past, did what I think any reasonable person would do in that circumstance. He apprehended that person and called the police.

Crown prosecutors later dropped the kidnapping and weapon charges, but proceeded with the charges of forceable confinement and assault.

Again, according to the Criminal Code as it is currently written, a property owner can only make a citizen's arrest if the alleged wrongdoer is caught in the act. Ultimately, Mr. Chen and his two co-accused were found not guilty of the charges of forcible confinement and assault on October 29, 2010. We often talk about court cases that we do not like, or we criticize judges when we feel they have not made the right decision. This is a case where all Canadians would applaud the wisdom of the judge who, notwithstanding the Criminal Code's provisions, saw that justice was done.

Anthony Bennett for his part pleaded guilty in August 2009 to stealing from the store and he was sentenced to 30 days in jail.

I want to pause for a moment and say to those people who feel that the bill encourages vigilantism, I would respectfully suggest that is not the case. It does not expand any powers of a citizen to make an arrest over what he or she has now. It simply alters the timeframe in which that arrest can be made. Right now if Mr. Chen had caught Mr. Bennett in the act of stealing from his store, he would have been perfectly entitled to do what he did, but the fact that it happened an hour later, under the current law renders that same act a criminal act. I think all Canadians would join with all members of the House in asserting that this is not a reasonable or logical approach to the law.

In February 2011, the government introduced Bill C-60, which was based on my hon. colleague from Trinity—Spadina's private member's bill. I should pause and say that immediately after Mr. Chen was charged, it was my colleague from Trinity--Spadina who met with Mr. Chen, helped translate his position to the media and to the public. She then went to work as she often does so diligently and drafted and introduced a private member's bill that would have done exactly what Bill C-26 proposes to do with respect to lengthening the amount of time that a citizen's arrest is possible.

Again, I will commend the government one more time in saying that the government, wisely and to its credit, adopted that bill. The Conservatives saw a good idea when one was introduced. That also shows that Parliament can work very well, contrary to what some Canadians might think about this place. It is sometimes the case that we do co-operate and make a law of general improvement to our country.

Unfortunately, my colleague's private member's bill and Bill C-60 died on the order paper when Parliament dissolved in March 2011. Bill C-26 was introduced in the 41st Parliament in a virtually identical form to Bill C-60 from the previous Parliament.

I want to turn to the other sections of the Criminal Code that the bill deals with. In addition to amending section 494 of the Criminal Code, Bill C-26, like its predecessor Bill C-60, also proposes amendments to the sections in the Criminal Code dealing with self-defence of property and person. Bill C-26 proposes a substantive overhaul of the statutory language in sections 34 to 42 of the Criminal Code. Five of these sections are from the original Criminal Code of 1892. As I said earlier, modernizing and clarifying this language is long overdue.

The courts for their part have also indicated that there are problems with clarity with respect to these sections. For example, the current self-defence provisions of the Criminal Code have been described as unwieldy and confusing and have been much criticized as a result. In the Supreme Court of Canada case of Regina v. McIntosh, Chief Justice Lamer, as he then was, stated that sections 34 and 35 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 the McIntosh case, however, has itself been called highly unfortunate for further muddying the waters around the self-defence provisions. The majority in McIntosh held that section 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 section 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.

That 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.

I have read the bill from beginning to end. This bill does a commendable job of clarifying that confusion which the highest court in our land pointed out.

As I said before, crime and complying with the law has been a dominant theme of the government. We all want Canadians to comply with the law. It is incumbent on us as parliamentarians to review that law and make sure it is clear and understandable. It is hard to expect people to comply with law that they do not understand. I must say that in reading this bill, it does a great job of clarifying when a person can use self-defence when the person is feeling a threat to his or her physical security and also when there is a threat to the person's property.

There are important considerations to this bill that I certainly expect the committee will study when it reviews the bill.

A citizen's arrest is a serious and potentially dangerous undertaking. Unlike a police officer, a private citizen is neither tasked with the duty to preserve and maintain 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 where the person submits to the arrest. It can be dangerous both to the person making the arrest and the person being arrested, and in fact anybody that is around those two people.

A citizen's arrest made without careful consideration of the risk factors may 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 and consider the following: his or her safety and the safety of others; reporting information to police, which is usually and I would say overwhelmingly the best course of action instead of the person taking action on his or her own; and ensuring that the person has correctly identified the suspect and the criminal conduct.

I would hasten to add that the bill does not authorize a person making an arrest to undertake whatever actions the person believes are possible under law. What it does is put careful constraints around when a person may make a citizen's arrest and when a person may actually employ the defence of self-defence, whether it is against the person or his or her property.

For instance, the bill has a number of provisions that import the concept of reasonableness. This is a concept that is well known and often used in Canadian law in many different respects, both civil and criminal. It ensures that before people can avail themselves of these provisions of the Criminal Code, they must be acting reasonably; they must have a reasonable basis to act before they do; and in the course of carrying out their self-defence, they are not entitled to break the law themselves. They are not entitled to assault someone. They are not entitled to use unreasonable force. They are entitled to take reasonable, minimally invasive steps that are necessary to accomplish three basic goals: make the arrest, if that is the only reasonable prospect in the circumstances; defend their person; or defend their property.

This is something the committee, when it goes over the bill, should keep firmly in mind. We must make sure in clarifying, improving and modernizing the law that that balance is carefully met. Some people have criticized the concept of the bill because they are worried that this is going to open the door to some form of unreasonable vigilantism. They are right to have that concern. That is what we must make sure is not done in this bill.

I conclude by pointing out that what is more concerning is the defence of property as opposed to defence of person. I believe those are two slightly different circumstances and what is reasonable in terms of people defending the integrity of their physical persons may be a different circumstance than what may be reasonable in defending property. Although property is important to defend, I believe there is a meaningful distinction between those two things.

I congratulate the government on bringing the bill forward. The New Democrats support this at second reading and look forward to working co-operatively in making this bill law for all Canadians.

[Kerry-Lynne Findlay, Conservative, Parliamentary Secretary to the Minister of Justice]

Madam Speaker, I am pleased to speak today to Bill C-26, An Act to amend the Criminal Code to address the issues of citizen's arrest and the defences of property and persons.

Bill C-26 represents a responsible expansion of the citizen's power of arrest as well as a simplification of the self-defence and defence of property provisions in the Criminal Code. These reforms are balanced and necessary. Today, I would like to address some of the details of the law of citizen's arrest.

Many members will know the background to the citizen's arrest reforms proposed in the bill. For members who perhaps are not as familiar with this issue, let me begin with a description of what arrest actually is. An arrest consists of the actual seizure or touching of a person's body with a view to detention. Uttering the words, “you are under arrest” can constitute an arrest if the person being arrested submits to the request.

Arrest powers are found in a range of federal and provincial laws. The Criminal Code provides for several distinct arrest powers. Currently, under section 495, the police officers are empowered to arrest, without a warrant, any person who they find committing a criminal offence. Police officers may also arrest without a warrant any person who they reasonably believe has committed or is about to commit an indictable offence.

For an arrest to be lawful, the arresting officer must personally believe that he or she possess the required grounds to arrest and those grounds must be objectively reasonable. This means that a reasonable person standing in the shoes of the officer would believe that there are reasonable and probable grounds to make an arrest, which depends upon reasonable and probable grounds to believe that an offence has been committed.

In comparison to the power of arrest that every police officer has, section 494 of the Criminal Code also authorizes private citizens to arrest, again without a warrant, those found committing indictable offences, those being pursued by others who have authority to arrest and those found committing criminal offences in relation to their property. In all cases of a citizen's arrest, there is a legal duty on the citizen making the arrest, under section 494, to deliver an arrested person to the police forthwith. This term “forthwith” basically means as soon as reasonably practicable in all the circumstances.

As members can see, there is a clear distinction between the power of arrest for police officers and the power given to citizens. There are good reasons for these differences, many of which are obvious. Police officers are professionally responsible for enforcing the criminal law. They are trained in the use of force, including how not to get hurt themselves and how to minimize any injuries that may be inflicted on others, as well as being trained in the legal requirements for lawful arrest. As well, police officers are subject to oversight so that in cases where things go wrong, a citizen who may have been unlawfully assaulted can seek redress.

Private citizens are not subject to any of these conditions but, nonetheless, the law does recognize that sometimes only the private citizen is in a position to act in the face of criminality. The law would not be doing its job of promoting public peace if it left the citizen with no choice but to stand and watch as criminals committed their crime. No, the law must and does empower the citizen, in limited circumstances, to take part in the administration of justice where necessary.

In this regard, the particular power of citizen's arrest we are concerned with is the power to arrest people found committing an offence on or in relation to property. As I have already mentioned, the power of arrest for the private citizen arises where the citizen finds someone committing an offence on or in relation to property. In other words, the person must be found actually in the process of committing the offence for a private arrest to be lawful. This is a limited power and the law does not permit an arrest even a short while after the offence was detected.

I think we can all appreciate that the limitation of “found committing” can produce unjust results in certain situations. Canadians do not agree with criminal charges against a citizen who tries to arrest someone a short while after he or she was found committing a crime, for instance where the person returns to the scene and is readily identified as the person who stole property a few hours before.

Bill C-26 therefore proposes a straightforward reform to extend the period of time allowed for making a citizen's arrest. Specifically, the bill would expand subsection 494(2) of the Criminal Code of Canada to permit property owners, or persons authorized by them, to arrest a person, not just when found committing a criminal offence on or in relation to property but also within a reasonable time after the offence is committed.

Many questions have been asked about what constitutes a reasonable period of time for making an arrest. It is not feasible to impose a rigid time limit on an arrest, such as an authority to arrest within four hours of an offence. A rigid time limit would likely produce unfairness in some cases, just as the existing rule that limits arrest at the time of the commission of the crime does.

It is also not possible to define or describe what constitutes a reasonable period of time. Whether an arrest was or was not made in a reasonable period of time must be determined on a case-by-case basis based on all the relevant facts and circumstances. Facts and circumstances that are likely to be relevant to such a determination include the length of delay, the reasons for the delay and the conduct of the suspect and the arrester, among others.

The proposed reforms also add an additional requirement where the arrest is made after the crime has been committed. This requirement is that the arrest will only be lawful if the person making the arrest reasonably believes it is not feasible for police officers to make the arrest themselves. This is a new safeguard that Bill C-26 would bring into law to ensure the law would not encourage or promote vigilantism. This requirement would ensure that citizens would only use this expanded power of arrest in cases of urgency and only after they turned their minds to the question of whether polices officers would be able to make the arrest.

It should not be forgotten that this new safeguard complements other safeguards already in the law of citizen's arrest. For instance, as I mentioned earlier, there is a duty upon any citizen who arrests someone to deliver that person as soon as possible to the police. This is another safeguard that ensures citizens are not in a position to apprehend a possible criminal and keep him or her confined for an extended period of time. Once apprehended, the suspect must be turned over to police. Failure to do so puts the lawfulness of the arrest in jeopardy and leaves the arresting person subject to prosecution.

These requirements are reasonable and appropriately balance the right of the citizen to take steps to prevent crime and apprehend criminals against the overarching objective of ensuring that it is the police who deal with suspects. The police have a duty to preserve and maintain the public peace and must remain our first and foremost criminal law enforcement body. This new safeguard, especially when coupled with existing ones, would ensure that they will so remain.

Finally, for even greater certainty, the reforms also specify that the existing provisions in relation to the use of force and effecting an arrest apply to citizen's arrest. These rules are set out in section 25 of the Criminal Code and apply to all actions taken by police officers and private citizens where they are acting for the purpose of administering or enforcing the law. According to section 25 of the Criminal Code, an individual who makes a citizen's arrest is “if he acts on reasonable grounds, justified in...using as much force as is necessary for that purpose”.

However, I would note that a person making an arrest will never be justified in using force that is intended or is likely to cause death or grievous bodily harm unless he or she believes on reasonable grounds that it is necessary for self-preservation or to protect anyone under his or her protection from death or grievous bodily harm. This is the same rule that applies to the police. Its benefits and objectives are clear and obvious.

These are important reforms that will give Canadians confidence that when they act to arrest someone they have found committing an offence, the law will view them as law enforcers in an emergency situation and not as criminals.

However, Bill C-26 would do more than this. It would also simplify the law relating to defence of property and defence of persons, which are in dire need of clarification. Law societies, bar associations and judges have been calling for such reforms for decades. It is not that the law does not give Canadians the power they need to defend themselves. Rather the problem is that the way the law is written is so confusing that it makes it very difficult to understand what is and is not permitted.

However, there are additional consequences. Once they are raised in court, confusing laws require prosecutors and defence counsel to devote energy and arguments about the proper interpretation and they cause judges difficulty in explaining to juries how they should govern their decision making. The end result is lengthier trials, unnecessary appeals and additional cost to the system.

In a nutshell, the legislation seeks to simplify both defences so Canadians can understand the rules and govern their ability to defend themselves, their families and their property. Simpler laws would also provide better guidance to police officers who are called to the scene of a crime. They will be better able to make appropriate decisions about whether charges are or are not warranted.

The proposed new defences would boil down to a few simple considerations. In the case of defence of the person, did the defenders reasonably perceive that they were or that another person was being threatened with force or were they actually being assaulted?

In the case of defence of property, did the defenders reasonably perceive that property they peaceably possessed was or was about to be interfered with, such as by someone taking, damaging, destroying or entering property without legal entitlement?

In both types of cases, did the defenders respond for the purpose of protecting themselves or another person from force or for the purpose of protecting the property in question from interference?

Finally, in both types of cases, did the defender act reasonably in the circumstances?

These are the key components for defences which allow a person in emergency situations to engage in conduct that would otherwise be criminal. Just as it is not possible to provide a definition or an answer in the abstract to the question of what is a reasonable period of time for making an arrest, it is also not possible to set out what actions are reasonable in self-defence or in defence of property.

What is reasonable depends entirely on the circumstances and the reasonable perceptions of the person faced with the threat. There are many relevant considerations; in fact, a list of factors that may be considered is provided in relation to self-defence and defence of another. This list includes a range of factors which frequently arise in self-defence cases, such as the nature of the threat, the presence of weapons, and any pre-existing relationship between the parties, and the proportionality between the threat and the defence of response.

In the case of defence of property, the nature of the threat to the property is likely to be the most important consideration. If someone is threatening to burn down their neighbour's house, such a threat would likely permit a greater defensive response than if the threat were merely to place an unwanted sticker on a neighbour's car.

I trust that it is now apparent why the reasonableness of the defensive conduct can only be assessed in relation to all the facts.

I would just like to address a few small points that relate to the defence of property. It is crucial to understand the limits of the legal ability to use force to defend property. This is not a defence that allows people to use force to protect or assert ownership rights.

Ownership rights, and many other legal interests in property, are matters of property law, which is a matter of provincial responsibility. Disputes over these types of issues must be decided by the civil courts if the parties cannot agree among themselves.

The defence of property only applies where there are real time threats to physical possession of property or threats to the state of property in someone's possession, such as a threat to destroy or render property useless and ineffective. That is because in emergency situations there is no recourse to the courts. If someone steals or destroys another's belongings, they are gone before the civil courts can assist.

The overarching function of the criminal law is to promote public order and public peace. The law therefore cannot sanction the use of force to protect property in any circumstances other than where a present lawful situation is threatened in a manner such that seeking civil recourse at some later date creates the risk of a permanent deprivation or loss of the property in question.

The law allows people to preserve the status quo, not to solve ongoing disputes with violence.

There is one last matter that I must address in relation to the defence of property. The new law of defence of property, like the current law, does not put any express limits on what can be done to defend property; however, I would like to note for members that our criminal courts have unequivocally rejected the use of intentional deadly force in defence of property alone as unreasonable.

In the case of self-defence or defence of another, these defences allow for the use of intentional deadly force, depending on the circumstances. This is because it is a life that is being threatened. It is only reasonable for individuals who face a serious threat from another person to protect themselves. If the nature of the threat is such that it is reasonable to counter that threat with deadly force, that may be acceptable, depending on the circumstances.

Threats to property are not the same. Human life always outweighs our interest in property. So when the situation is one where damage or destruction of property must be balanced against the determination of human life, the property interest must give way to the greater interest in human life.

Some conflicts which appear on the surface to involve threats to property only do in fact also pose a risk to human life. For instance, individuals whose homes are invaded are likely to feel that their property is being interfered with and on that basis does have the right to use force to evict the trespasser; however, this does not mean that a homeowner is without recourse and must submit to anything the trespasser intends. Rather the homeowner is also likely to feel personally threatened by the presence of the trespasser in such circumstances.

In any case, where a person has succeeded in entering a home without permission, especially if it is at night, that presents a situation in which any reasonable individuals would perceive danger to themselves and other occupants. Where such a threat is reasonably perceived, self-defence and defence of others becomes available and indeed may be the operative defence if deadly force is ultimately used.

I think all members can agree that clear and simple defences and a citizen's arrest law that provides flexibility for variations in the circumstances will allow all Canadians to take necessary and reasonable steps when the circumstances leave them no other reasonable options.

I urge all members to support this important legislation.

[Elizabeth May, Green, Saanich—Gulf Islands, BC]

Madam Speaker, I appreciate the speech by the hon. member for Mount Royal, particularly for bringing us back to the need for broader Criminal Code reform, particularly to look at bringing back the Law Reform Commission of Canada.

We have a situation where we generally agree with the objects of the bill, as I know the hon. member for Mount Royal and I did back in June when we looked at the megatrials bill. The efforts made to improve that bill so that it would work were gavelled out of order and we went right through to passing a bill with no changes.

We have just experienced the same thing with Bill C-10. The efforts made to improve that bill in the government's interest and toward the goals that it put forward were rushed through and, unfortunately, the amendments put forward yesterday by the Minister of Public Safety, which were so closely parallelled with what the hon. member for Mount Royal had put forth before, were ruled out of order, and appropriately, by the Speaker.

What chance do we have of his very sensible approaches being taken seriously at committee? Does he have any indication that we will have a different atmosphere around the committee with respect to Bill C-26 from what we have had with previous bills in this session?

[Irwin Cotler, Liberal, Mount Royal, QC]

Madam Speaker, I am pleased to rise to participate in this debate on Bill C-26, the citizen's arrest and self-defence act. While I may not agree with much of the government's crime and punishment agenda, this legislation is something that I can support in principle, although I do have some concerns that I believe may be able to be adequately addressed in committee.

As my colleagues have noted, this legislation replaces the current Criminal Code provisions on self-defence and defence of property. This change is welcome, because Canada's self-defence laws are complex and out of date, as the jurisprudence itself has demonstrated. This has been further highlighted by recent high-profile cases that have produced some less than ideal results, as already referenced in the chamber debate this morning. The bill would provide greater clarity, therefore, for prosecutors, judges and juries, as well as for those who may find themselves in a circumstance requiring them to defend themselves or their property.

Simply put, I support this necessary law reform. Indeed, a review and simplification of the entire Criminal Code is needed, as I indicated during the period that I served as Minister of Justice and Attorney General. I trust that the government will commit itself to a comprehensive criminal law reform and in that regard reinstate the Law Commission of Canada, which I and others found to be a very valuable resource in this regard.

While this legislation fixes on one particular section of the Criminal Code, much more remains to be done. It is important to point out, for example, that although it was raised at committee, a textual inconsistency that we have yet to correct in Bill C-10 adds, perhaps inadvertently, another error to the Criminal Code. Indeed, in the committee deliberations we found at least four errors in the French text of the Criminal Code as it is now, and errors with respect to the English and French texts when compared to each other. My point is that if we are going to add another piece to the Criminal Code, as in Bill C-10, we should correct it to the extent that we can.

Returning to Bill C-26, the changes to the self-defence provisions would repeal the current complex self-defence provisions, which are spread over four sections of the Criminal Code, and create one new self-defence provision. Currently sections 34 to 37 of the Criminal Code provide distinct defences to those who use force to protect themselves or another from attack, depending on whether they provoked the attack or not and whether they intended to use deadly force. In that particular regard, the use of deadly force is permitted only in very exceptional circumstances, such as when it is necessary to protect a person from death or grievous bodily harm.

The new legislation in Bill C-26 would, as one section of the Criminal Code alone, permit persons who reasonably believe themselves or others to be at risk of the threat of force or of acts of force to commit a reasonable act to protect themselves or others. The act outlines factors to consider when assessing reasonableness, something I will address shortly.

With regard to defence of property, sections 38 to 42 of the Criminal Code currently outline multiple defences for the “peaceable possession” of property. The defences respecting the type of property relate to whether the property is either personal or real property, the possessory right of the possessor and of the other person, and the issue of proportionality in the threat to the property. In addition, the code requires that one consider the amount of force used when a property defence is raised.

I do not intend to address in particular the legislation with respect to these property defences in particular. Briefly, Bill C-26 would repeal what jurisprudence and experts have held as the confusing defence-of-property language, now spread over five sections of the Criminal Code, and remove in part the distinction between defence of real and personal property.

Under Bill C-26, one new defence-of-property provision would be created, eliminating the many other distinctions that currently exist in the code and arguably serve no purpose but to confuse and confound the matter. Simply put, the new provisions 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.

In particular, my concern is not with the defence of property provisions, with which I agree, but rather with the new self defence provision, which I believe, while I support again this approach to amendment, may in and of itself arguably be overbroad.

I will state at the outset that it is not as though, without the bill, there is no right of self defence or citizen's arrest. Both exist as a matter of the common law. Both have been codified as statutes. Indeed, if we did not have a statutory basis, we would have the common law. Statutory reform now would in fact refine and, hopefully in this instance, improve our approach and understanding of this matter.

Primarily, the concern is that the current Criminal Code provision with respect to self defence provides that, “Everyone who is unlawfully assaulted without having provoked the assault is justified in repelling, force by force”. Thereby, confining self-defence to assault situations and noting that it could not have been the result of provocation.

This new legislation would remove the assault requirement entirely, speaking of force or threat of force, and also would remove provocation. This is where I believe that committee study of the bill will be helpful.

What force or threat of force is contemplated by the new legislation? While one may consider that it refers to physical force, we might want to specify that, or we might also want to ask the question whether the legislation also envisages the threat of economic force in a bargaining situation, for example. This is not to say that the current limitation of the Criminal Code is self-defence only in assaults is the correct approach, but it may be that we would inadvertently be opening the door to other claims and concerns.

The legislation offers a list of factors to consider when determining whether or not the action taken was reasonable in the circumstances, and where the current Criminal Code, as I noted, speaks of provocation, something which this legislation would remove, the new legislation includes in its factors the person's role and the incident.

The question is whether this provision is meant to account for provocation. Might we want to amend it to say, “including whether there was provocation on his or her part”. To my mind, that would clarify the rules and what it is meant to address, as it may be inappropriate to eliminate the entire line of jurisprudence surrounding the notion of provocation.

I would like to focus on some of the factors list, as this is where I believe we may have to address it in committee, though again, as I say, I am supportive of the bill in principle.

The most concerning or disconcerting factor here is found in (e) in what would become section 34.2 of the Criminal Code. The factor, again with respect to determining the reasonableness of someone's self defence action, refers to the size, age and gender of the parties to the incident. Size and age I can appreciate. As one of the older members in the House, I can attest that people sometimes make certain assumptions about age, including sometimes about the imminent retirement of a member, which may be far from the mark.

The use of gender in this factor warrants a certain approach or critique. Indeed, some might call it a feminist critique, but I propose it just as a critique on the merits. What does “gender” itself have to do with reasonableness? If we are trying to address a size imbalance between the parties to a incident, is not the size factor itself sufficient? If we are trying to address a power or strength imbalance, might we use those words or some other phrase such as perception of potential force that could be exerted. As soon as we put in gender, we may be opening the door to the resurgence of a series of myths and stereotypes, which have, regrettably, undermined our criminal law, as we have observed most notably in the area of sexual assault.

This would open the door to all sorts of assumptions about gender playing out, either in police decisions to prosecute or in judges' rulings and the like.

The concern here is that we may see some relying upon and the furthering of the outdated notion of a weak, defenceless woman. If she is unarmed, we have a factor, as set forth in (d), whether any party to the incident used or threatened to use a weapon. Again, the question is what gender may be adding.

Its presence in the statute implies that there is some fundamental difference between capacities of men and women to protect themselves. While I remain unconvinced that this itself is something we should be addressing in this fashion, the point is that if there is a size or power or weapons imbalance, that is what the issue is, not the gender of the person.

On this point, too, we may have certain stereotypes about masculinity as well. Some men who are attacked or feel an attack is imminent, may respond aggressively, others more passively. Again, the question is whether this factor implies that only one type of response is appropriate. I think this is something that may warrant addressing on deliberation in committee.

A final factor that we may want to address is in (f), which refers to the nature, duration and history of any relationship between the parties to the incident, including any prior use of threat or force and the nature of that force, or threat. I can imagine that this could raise difficulties in conjugal relationships where there is a long and complex history between the partners and the focus of the police service or the judge may be on the physical relationship or force, not taking into account considerations like economic dependency or psychological force that are also important.

Indeed, I have a particular concern here that couples that may have had a disturbing relationship over time and then one partner crosses the line, a judge may pass it off as par for the course instead of addressing it as a serious act of conjugal violence. Again, this is something best addressed in committee.

The final concern I have with the bill has been raised by numerous academics and has been raised this morning as well. It is the potential risk for vigilantism, which we certainly do not want to promote this.

With reference to my comments earlier about the scope of self-defence no longer being just assault and the addition of the word “threat” of force, it may be that we are somewhat overbroadening this bill such that we may give a pass to those who really should not be engaging in matters best left to our informed and uniformed first responders.

I welcome this modification to Canada's criminal law. It would clarify and streamline self-defence and defence of property. However, as I mentioned, I have some concerns with some of the factors enunciated in this legislation. It is my hope that, through thoughtful and informed deliberation and debate in committee, we may be able to address these issues and favourably resolve them. The bill can then enjoy the full support of the House, as it now has, as a matter of principle, but then can be more fully supported with regard to any considerations that may raise some matters for concern.

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

Madam Speaker, I am pleased to have an opportunity to speak today at second reading on BillC-26, an act to amend the Criminal Code in relation to citizen's arrest and the defences of property and persons.

This bill had its origins in the attention brought to a citizen's arrest some two years ago in Toronto. I think it was called the Lucky Moose case, after the name of a foodmart in downtown Toronto. The owner of the store was a persistent victim of shoplifting. A shoplifter, whom he had seen in his store walk away with some property, apparently came back an hour or so later. Based on his experience in trying to get the police to respond to shoplifting events in the store, the store owner felt that the only way to actually have this fellow charged was to apprehend him.

As a result, the owner was charged with assaulting the individual and with forceable confinement. I think at one point he may have been charged with kidnapping as well. However, the end result was that he was himself put before the courts.

The case caused a lot of controversy. Some of it had to do with whether the policing was sufficient in the area. We know that in larger establishments, like supermarkets and retail stores, there are often security services operating in the establishments. They have some training in apprehending people. They are in effect performing citizen's arrests based on seeing someone actively committing a shoplifting offence. They will phone the police and hold the shoplifter until the police come.

What was different in this case was that the individual had left the store and then came back. When he came back, he was not in the act of committing an offence, as the parliamentary secretary pointed out. As a result, Mr. Chen, the owner of the store who did this, was not inside the provisions of section 494 of the current Criminal Code that says a citizen may arrest someone who is found committing an indictable offence, or personally believes on reasonable grounds that a criminal offence has been committed and is escaping from it, and is freshly pursued.

Actually 494.(2)(b) was the section that he was purporting to act upon. It states:

A person authorized by the owner or by a person in lawful possession of property, may arrest without warrant a person whom he finds committing a criminal offence on or in relation to that property.

There is a provision that says, “Any one other than a peace officer who arrests a person without warrant shall forthwith deliver the person to a peace officer”.

The normal process for shoplifting is that the store detective, or the store owner, can actually apprehend individuals, phone the police, and forthwith turn them over and the police handle it from there. In this case, because the arrest took place an hour later on a return visit, the owner did not have any basis under section 494 to arrest this individual.

Hence, the legislation originally came forward as a private member's bill introduced our colleague, the member for Trinity—Spadina. I think she might have even called it the Lucky Moose bill in honour of Mr. Chen. It received widespread support from all sides of the House.

Many people who are in the position of being lawmakers are very concerned about passing laws that would encourage a vigilante type of justice. This is why this is such a touchy area.

As the parliamentary secretary said, we have a highly trained police force operating across the country. We have a national police force, local police forces and community policing. There are people patrolling on foot in Chinatown, where the event happened, and other areas of Toronto. These are the people on whom we need to rely.

On the other hand, not every store owner has access to security guards or store detectives. The concern here is for the person trying to run a business. In this case, Mr. Chen was trying to run a business and protect his property. I think most people would think he acted reasonably and detained the individual without using excessive force. However, that is forcible confinement, for which Mr. Chen was charged. If one uses force to confine someone to prevent the person from leaving, that is an offence. However, the citizen's arrest provision provides a defence for forcible confinement by changing it to an arrest, provided the arrest is made within a reasonable period of time.

I suppose if one knows who the individual is, one would phone the police to tell them that the individual is known to have done this before and was witnessed taking something and leaving. The individual would not be chased because of the danger involved and the police would be called. However, if one does not know who the individual is, then the only way to apprehend the offending stranger is to take advantage of the opportunity to pursue.

We support this aspect of the bill wholeheartedly. I think it takes a minimalist approach by making changes to section 494. When I say minimalist, I mean that it does only what is required by the circumstances in which Mr. Chen found himself.

There have to be two conditions: one must witness the offence and the arrest must be made at the time of the offence or within a reasonable time after the offence is committed. Also, one must believe that, on reasonable grounds, it is not feasible under the circumstances for a peace officer to make an arrest.

We could say that when the individual came back into the store, instead of arresting him, the police should have been called right away. However, in Mr. Chen's experience, the police often did not come fast enough and he thought that this individual would be gone again. Mr. Chen would have had this defence, if it fit the circumstances.

Of course, as legislators, we should not make laws every time something unusual happens. However, if the unusual happening points out a flaw in the law where people see an injustice, then I think that a reasonable legislature should take some action, and we support that wholeheartedly.

I want to speak about the powers of self-defence. This is complex, as my colleague, the parliamentary secretary, has pointed out. I do not disagree with the overall thrust of his comments.

As it stands, sections 34 to 42 of the Criminal Code deal with the issues of self-defence. We have specific provisions which allow for self-defence of the person, property and dwelling houses. Historically, there have been reasons for that.

Within the provision for self- defence of a person, there are two categories. One category is for a victim of unprovoked assault. The other category is for a victim who may have started a fight, but the response is so overwhelming that he or she has had to defend himself or herself.

I have no doubt that the rules are complicated. I am looking at the annotated Criminal Code. It starts off with the section with which we are dealing. It then has a series of annotations from case law, covering what the courts have said about these various provisions. I see that even though we are only dealing with relatively short sections of the Criminal Code, there are more than a dozen pages devoted to the cases that have interpreted these sections. That tells us two things: number one, the provisions are litigated relatively often; and, number two, the courts have a history of actually interpreting that legislation.

Section 41, in reference to the defence of a dwelling house and assault by a trespasser, states:

Every one who is in peaceable possession of a dwelling-house... is justified in using force to prevent any person from trespassing on the dwelling-house or real property, or to remove a trespasser therefrom, if he uses no more force than is necessary.

That is a specific limitation on the use of force. I have been a victim of a break and enter in my house. For example, if someone came into my house and I had no idea what the situation was, I could not get a two-by-four, wait for the individual to come around a corner and crack him or her over the head with it because the person is in my house. If I happen to have a registered weapon or shotgun, I cannot shoot the person just because he or she is on my property.

When we were kids we heard stories about stealing crabapples. We may remember hearing about homeowners with salt guns. I do not think I ever saw a salt gun, but they were shotguns that people would put salt in. We had neighbours we were frightened of because they supposedly had a salt gun. If people were caught stealing crabapples, they would get shot with a salt gun. I have never actually met anybody who was shot with a salt gun, but it would probably be illegal. I hope it would be illegal, but that does not mean it did not happen. Similarly, if people walk on my property, I cannot tell them to get off my lawn and if they refuse, pepper them with a shotgun. That is unreasonable force. That is not force people are allowed to use under the Criminal Code.

In criminal law and the interpretation of law, words are very important. This is especially true when, in the case of these provisions in the Criminal Code, 100 years or more of judicial interpretation has helped to establish how these words are interpreted. An example would be the situation where there is more force than necessary. If people use more force than is necessary, they are going to be convicted of an offence. In fact, even outside the provisions of self-defence, section 26, which also applies to citizen's arrest, states:

Every one who is authorized by law to use force is criminally responsible for any excess thereof according to the nature and quality of the act that constitutes the excess.

We are not changing that. Regardless of what changes are made to sections 34 to 42, this excess force provision would remain. I am saying this off the top of my head right now, but perhaps it is all right to get rid of the provision of no more force than is necessary because there is the excess force provision in section 25. However, I am using that as an example.

We agree that there may be some confusion. The Supreme Court of Canada has indicated that there may be some confusion in the law. It added more confusion, in the case of McIntosh, by deciding that sections 34 and 35 were somehow not separate approaches but should be looked at together. The question is how we can eliminate that confusion without causing other problems or encouraging people who might take the law into their own hands and do things that are dangerous.

We support the citizen's arrest case in principle and feel that there is no need for change to the provision. On the idea of looking at the whole question of self-defence, are we making it more likely to be abused? Are we making it easier to understand and to apply? Are we sending the right message to citizens? Or are we encouraging, perhaps, more self-help in situations where the police should be called or where extreme restraint ought to be encouraged? Obviously, people have a right to defend themselves.

I have practised criminal law among other kinds of law over the years. There was one individual who was charged with manslaughter who was acquitted on the basis of self-defence. They were very tragic circumstances. The individual who died should not have died. It was a complicated case because he died several days later after having hit his head. The simple question was whether the blow that caused him to fall was an assault or was in self-defence. If it was an assault, he was guilty of manslaughter even though it was a trivial blow. If it was a blow in self-defence, then it was not manslaughter. The individual ended up with a subdural hematoma, a cracked skull. He was not properly treated at the hospital and died three days later. Self-defence is very important for that reason: it can mean the difference between the kind of consequences that I am talking about and a proper defence to a charge. We have to be very careful in doing that.

We will support this bill at second reading. We want it to have careful consideration, which is code for not rushing it through, I say to the Parliamentary Secretary to the Minister of Justice and the committee. We do not want to see this dealt with in one meeting. We want to hear from people who have practised criminal law. We want to hear from experts in the Department of Justice, from the Canadian Bar Association and others. We need to examine it very carefully. We need to ensure that by making changes, we are not throwing away 100 years of precedent and all the advice that the courts have given. If we are starting off with a blank slate and a whole new law, it may take another 10 or 20 years of case law to understand what that means. Do we really need to go down that road? I think we have to answer that question with the kind of detailed study that can take place in a committee. I know the member from Athabasca who spoke earlier is on that committee, along with the parliamentary secretary, others with legal training and lawyers who have practised in the area. Also, we would rely not just on ourselves but the expertise of people who have analyzed these provisions, studied all the cases and who can help us ensure that we are doing the right thing.

Having said that, we will support this bill at second reading but we do want to have extremely careful consideration given to it in committee.

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

Madam Speaker, I am pleased to lead off the debate on Bill C-26, An Act to amend the Criminal Code (citizen's arrest and the defences of property and persons). Bill C-26 was first introduced in the last Parliament as Bill C-60. The bill is a responsible expansion of the citizen's power of arrest and also includes a long overdue simplification and clarification of the law on self-defence and defence of property.

Prior to the introduction of former Bill C-60, the issue of citizen's arrest had been subject to two private member's bills and numerous discussions in parliaments, newspaper and, no doubt, in coffee shops across the country. So the straightforward reform proposed for the law of citizen's arrest in the bill is well understood and well supported by all parties. I will speak to it only briefly today.

The proposed reforms to the defences of property and persons have different histories and goals. Some members were surprised by the inclusion of these reforms in Bill C-60 when it was introduced. I would like to start by explaining why these reforms were presented together.

While defence of property and the power to make a citizen's arrest are separate legal concepts, in the real world, these concepts can sometimes overlap. For example, imagine a security guard who discovers an intruder in a building who is heading to the door with a laptop in hand. The security guard can apprehend the thief and then call police so that the thief can be charged. That is an example of a citizen's arrest. That is the typical situation in which citizens make the arrest themselves and then call the authorities.

In this emergency situation, the law authorizes the security guard to make the arrest, in the place of the police, but the security guard could also use a minimal amount of force against the thief. For example, the guard could grab the thief's arm while trying to grab the laptop. Because the intent is different, this action could be considered defence of property—the laptop, in this case. If the thief resisted or responded with force, it would be a matter of self-defence if the guard had to defend himself.

While there are three distinct legal mechanisms, they are all directly relevant to the broader question of how citizens can lawfully respond when faced with urgent and unlawful threats to their property, to themselves and to others.

Our government recognizes that all of these laws, any one of which may be pertinent to a given case, must be clear, flexible and provide the right balance between self-help and the resort to the police. That is why all these measures are joined together in Bill C-26.

I will now to turn to a brief description of the proposed citizen's arrest reforms and to devote the rest of my time to the reform of the defences.

On the question of a citizen's arrest, no one can dispute the fact that arrests are primarily the responsibility of the police. This will remain their responsibility and there is no change in that regard. However, in recognition of the fact that the police are not always present when a crime is committed, the Criminal Code has long authorized citizens to arrest other citizens in narrowly defined situations, including where an offence is committed on or in relation to property.

Section 494(2) of the Criminal Code currently allows for an arrest only where a person is found committing an offence. That said, there have been occasions recently where a citizen effected an arrest a short while after the crime was committed because that was when the opportunity arose. These cases have raised questions about whether the scope of the existing arrest power is appropriate.

Our government believes that it is reasonable to extend the period of time allowed for making a citizen's arrest by allowing arrest within a reasonable time after the offence is committed.

To discourage vigilantism and to ensure that citizens only use a slightly expanded power of arrest in cases of true urgency, Bill C-26 also includes a requirement that the arresting person reasonably believes that it is not feasible in the circumstances for a peace officer to make the arrest. These are reasonable and responsible reforms and all members are urged to support them.

Although our citizen's arrest reforms are rather simple, the changes that they will mean for defence of the person and defence of property need more detailed explanations.

The provisions on defence of the person and defence of property, as they are currently written, are complex and ambiguous. Existing laws on self-defence, in particular, have been the subject of decades of criticism by the judiciary, including the Supreme Court of Canada, as well as lawyers, academics, lawyers' associations and law reform organizations. Much of the criticism has to do with the fact that the existing law is vague and hard to enforce. It is fair to say that reform in this area is long overdue.

These kinds of defence were included in the very first Criminal Code. The wording of this part of the legislation has remained very similar since the original Criminal Code was written in 1892. Defence of property was covered in nine separate provisions containing a number of subcategories and other very complex provisions that have become obsolete and unnecessary.

Professor Don Stuart of Queen's University, whose textbooks on criminal law are widely used by first year law students in this country, has written:

The defences of person and property in Canadian law are bedeviled by excessively complex and sometimes obtuse Code provisions.

It is important to be clear, however, that the criticisms of the law do not pertain to its substance but rather to how it is drafted. Self-defence and defence of property are and have always been robust in Canada. There has been a lot written in newspapers about the right to self-defence and protection of one's property, some of which suggests that these rights have been diminished or are inadequately protected. This is untrue. The law is robust, despite the fact that the rules as written in the Criminal Code suffer from serious defects, and despite the way the media have portrayed these issues in recent times.

Parliament has a duty to ensure that laws are clear and accessible to Canadians, criminal justice participants and even the media. That is exactly what we are proposing to do in Bill C-26, even though the actual rights of Canadians are robust and upheld in Canadian courts on a daily basis. When the laws which set out these rules are confusing, we fail in our responsibility to adequately inform Canadians of their rights. Obviously, unclear laws can also complicate or frustrate the charging provisions of the police who themselves may have difficulty in reading the Criminal Code and understanding what is and is not permitted. Bill C-26 therefore proposes to replace the existing Criminal Code provisions in this area with clear, simple provisions that would maintain the same level of protection as the existing laws but also meet the needs of Canadians today.

How are we proposing to do this? I will start with the defence of the person because it arises more frequently than does the defence of property, because calls for reform have focused on this defence, and because of the fundamental importance of the right of self-preservation in Canadian criminal law.

If we were to ask ordinary Canadians if they think self-defence is acceptable, they would say that it is acceptable when their physical integrity or that of another person is threatened. I think they would also say that the amount of force used should be reasonable and should be a direct response to the threat.

The reforms proposed in Bill C-26 are centred on those basic elements. Because of the general nature of these ideas, one law based on these fundamental principles should be able to regulate all situations that arise involving defence of the person. We simply do not need different regulations for every set of circumstances. All we need is a single principle that can be applied to all situations.

Under the new defence, a person would be protected from criminal responsibility if there are three conditions which are met: one, the person reasonably believes that he or she or another person is being threatened with force; two, the person acts for the purpose of defending himself or herself or another person from that force; and three, the person's actions are reasonable in the circumstances. Let me clarify a few salient points.

First, unlike the current law which creates different defences for different circumstances, the new law would cover both self-defence and defence of another. The same criteria govern defensive action in both situations.

Second, with regard to the defender's perception of threat to himself or herself or another, members should know that a person is entitled to be mistaken about his or her perception, as long as his or her mistake is reasonable. For instance, if a drunken neighbour walks into the wrong house at 3 a.m., the homeowner may well be reasonable in perceiving a threat to himself and his family, even though there was in actual fact no threat at all, just a tired, drunken neighbour in the wrong house.

The law must still allow people to use defensive force where they make a mistake that any reasonable person could make. Unreasonable mistakes, however, are not permitted. If a person seeks to be excused for the commission of what would otherwise be a criminal offence, the law expects the person to behave reasonably, including in the person's assessment of threats to himself or herself, or others.

Third, the defender's purpose is paramount. If a person acts for the purpose of defending himself or herself or another, the defence is available. Defensive force cannot be available as a disguise for what is actually revenge. Conduct for any purpose other than protection falls outside the bounds of defensive action and the person stands to be convicted for it.

Fourth, if the other conditions are met, then the defender's actions must be reasonable in the circumstances. What is considered reasonable in the circumstances depends entirely on the circumstances of each specific case, as assessed by the reasonable person test. The question is: would any reasonable person in the defender's situation have done what the defender did? There is not just one reasonable response for every situation. The important thing to know is that the defender behaved in a way that the judge considers reasonable in those particular circumstances.

The list of factors that may be relevant in determining whether the act of defence was reasonable is far too long to be included in the Criminal Code. Nonetheless, to facilitate the deliberation process, without limiting the nature and scope of the factors that could be taken into consideration, the proposed reform provides a list of well-recognized features of many self-defence situations presented before our courts. This list will guide judges and juries in their application of the new legislation, and confirms that current case law on self-defence continues to be applicable.

Factors that are on the list and likely to be relevant include the nature of the threat and the response to it. For instance, was the attacker threatening to break a finger or to kill? Another factor is whether weapons were present. Another factor is the relative physical abilities of the parties, such as their age, size and gender. Naturally, a petite, elderly woman and a fit, young man may have different options available to respond to the same threat. Another factor is whether there were any pre-existing relationships between the parties, including any history of violence and abuse.

This last factor is particularly important in cases where a battered spouse must defend against an abusive partner. As the Supreme Court has noted in the landmark case of Lavallee, it is sometimes difficult for a jury of citizens to understand how a battered spouse might stay in an abusive relationship or how the person might come to understand the patterns of violence of the person's partner. These cases do not arise often but when they do, sensitivity to these factors is crucial.

The reasonableness of the response must take into account the nature of the relationship and the history between the parties in arriving at a just result.

The proposed law would establish a simple and meaningful framework for decision-making. The relevant facts must be determined first, and then the rule can be applied. Police and prosecutors, in assessing whether a charge should be laid, should gather all the facts and then assess them against the criteria set out in the defence to determine whether there is a reasonable prospect of conviction and whether charges are in the public interest. If charges are laid and the defence is advanced, the trier of fact will be asked to determine, based on his or her assessment of the facts presented at trial and his or her own experience and common sense, whether the actions taken were reasonable in response to the threat.

I want to bring one small change to the attention of the hon. members. The use of force is permitted under current legislation only in the defence of a person. Essentially, violent behaviour against the attacker is permitted in the defence. Bill C-26 broadens the defence in order to recognize the fact that in emergency situations, a person might use other forms of behaviour in self-defence such as breaking and entering into a building to seek refuge or even stealing a car in order to flee.

In parallel to the changes to the self-defence provisions, Bill C-26 would replace all the existing provisions for defence of property with one single criterion. It encompasses these essential components and maintains the same level of protection as under the current legislation.

There are three primary conditions to the proposed defence. First, the defender must reasonably perceive that someone else is about to or has just done one of the following things: enter property without being legally entitled to, or take, damage or destroy property. Second, the defender must act for the purpose of preventing or stopping the interference with property. Third, the actions taken must be reasonable in the circumstances.

As with the case of defence of the person, a person can make a reasonable mistake about a threat or interference with property and still have access to the defence. The defender's purpose must be defensive. Defence of the property is not a disguise for revenge. The overarching question for the trier of facts will be whether the actions taken by the defender were reasonable in the circumstances.

It is also imperative to appreciate the defence of property is different from and more complicated than the defence of the person in one important respect. Every person has the right to decide who can touch him or her and how he or she wishes to be touched, and it is very clear when the trigger of non-consensual threat to bodily integrity arises.

Property is very different from the human body in this respect. There can be overlapping interests in the same piece of property which can lead to disputes as to the degree and nature of those interests. Therefore, the defence of property must be guided by the realities of property law in addition to its other basic conditions.

The result as far as the criminal law is concerned is that the defence of property has an additional pre-condition; namely, that the person who claims the defence must have been in peaceable possession of the property at the time of the interference.

The concept of peaceable possession of property is present in the current law and is included in these reforms. This term has been interpreted by our courts to mean that the person must be in actual physical possession of, or in control over, the property at the time of the threat or interference, and that the possession itself must be unlikely to lead to a breach of the peace and is not contested by others. This is the way in which possession must be peaceable; it must not be contested or risk violence or public disorder.

For instance, protesters occupying a government building and criminals who are safeguarding stolen goods are not in peaceable possession of property, and therefore they cannot benefit from the defence if someone else tries to take or enter property.

Law-abiding citizens going about their business, on the other hand, will almost certainly be in peaceable possession of their property. If they reasonably believe that someone is threatening their possession, for instance, a thief is trying to pick their pocket or an intruder is trying to break into their house in the middle of the night, and if they act for the purpose of protecting the property from that threat, they will be excused from criminal responsibility for any actions they take that are reasonable in the circumstances.

We can see why threats to ownership rights do not justify responsive actions that might otherwise be criminal. Ownership and many other legal interests in property are matters of property law, and must be decided by the civil courts if the parties cannot agree among themselves.

Only actual real-time threats to physical possession of property allow a person to respond in a way that would otherwise be criminal. The overarching function of the criminal law is to promote public order and public peace. The law therefore cannot sanction the use of force to protect property in any circumstances other than where a present lawful situation is threatened in a manner such that seeking civil recourse at some later date creates the risk of permanent deprivation of property.

The law allows people to preserve the status quo, not to solve ongoing disputes with violence.

In closing, I invite all hon. members to support this bill. These changes are long awaited and are a reasoned and measured response to very complex legal situations.

[Gerry Ritz, Conservative, Battlefords—Lloydminster, SK]

moved 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, this is delivering results on jobs week.

I will begin by noting that the highlight of the week was the passage of the budget implementation act, Bill C-13, keeping Canada's economy and jobs growing act. That legislation has now moved on to the other place where we look forward to its passage.

We have also advanced Bill C-18, the marketing freedom for grain farmers act, past report stage. This bill would give marketing choice to western grain farmers, so it is a priority for us to have market certainty and have it passed by next year. For that reason, it is our intention to complete third reading of the bill on Monday.

Of course, Tuesday afternoon and again this morning, the House has continued debate on the opposition amendment to decline second reading of Bill C-11, An Act to amend the Copyright Act. We will continue that debate this afternoon. If the opposition finishes their effort to block this bill—after 16 hours of speeches—we will proceed to Bill C-14, Improving Trade Within Canada Act.

Tomorrow will be the sixth allotted day.

On Monday, we will start here for law-abiding Canadians week.

On Tuesday, we will start the post-committee stages of Bill C-10, the safe streets and communities act. This will continue on Wednesday. I note that it was reported back from the Standing Committee on Justice and Human Rights this morning. I do want to thank the members of the committee on their 27 hours of meetings in just the past couple of weeks. All told, including the nine predecessor bills within this legislation, we have seen 95 hours of House debate, 261 speeches in both chambers of Parliament, not to mention 70 meetings in committee rooms of this place.

On Thursday, we will continue here for law-abiding Canadians week with the start of debate on second reading of Bill C-26, the citizen's arrest and self-defence act, which the Attorney General introduced recently. Should time permit after that debate next week, we will return to debate the opposition's motion to block Bill C-4, the human smuggling bill, from going to committee. We hope we will be able to complete the debate on the opposition's motion to prevent that bill from going to committee soon so that we may actually have it go to committee.

Finally, as part of this week’s delivering results on jobs week, on behalf of my honourable friend, the Minister of Finance, I am pleased to table a ways and means motion in support of the establishment of a financial literacy leader for Canada. As honourable members would know, November is Financial Literacy Month; an issue championed by the hon. member for Edmonton—Leduc, the chair of the finance committee.

Pursuant to Standing Order 83(2), I ask that an order of the day be designated for the consideration of this motion. For the benefit of the House, I plan to call this motion immediately after question period on Tuesday of next week.

Justice

[Rob Anders, Conservative, Calgary West, AB]

Mr. Speaker, our government is committed to putting real criminals behind bars. Canadians who have been a victim of a crime should not be recriminalized by the criminal justice system. That is why our government has introduced Bill C-26. This legislation would bring much needed reform for Canadians to defend themselves and their property and arrest the perpetrators.

Last year Joseph Singleton, a resident of Alberta, while trying to protect his property, was charged with assault. Rather than being supported, his brave act to defend his home and his family has caused him more harm than good. Mr. Singleton had to go through the complex and lengthy court system to clear his own name.

There should be no more innocent victims who are penalized for defending their property. Bill C-26 would help police and judges to determine who the actual criminals and victims are and will prevent similar cases. Canadians would now have the fundamental right to protect themselves, their family and their property.

Citizen's Arrest and Self-defence Act

[Rob Nicholson, Conservative, Minister of Justice and Attorney General of Canada]

moved for leave to introduce Bill C-26, An Act to amend the Criminal Code (citizen's arrest and the defences of property and persons).

(Motions deemed adopted, bill read the first time and printed)