Justice Committee on Feb. 7th, 2012

[Rob Nicholson, Conservative, Niagara Falls, ON]

Thank you for that question, Monsieur Jacob.

You'll notice, in our definition of who can exercise these responsibilities or who can act on these occasions that are presented to them, that we've clarified the laws with respect to that individual: it's not just the owner of the property, or people who have a certain right or a title. We've made it clear that the person could be authorized by the owner or by the people in possession of the business or the property, and that certainly would include private security agents. If you ask them, I think you will find that they are quite satisfied with that. I would even go so far as to say they would be pleased by the fact that they will come within the definition for this particular piece of legislation, so that the person who has been given this legal responsibility to protect the property can exercise the same rights as the owner would.

I think you'll find those provisions within the act, as you'll see in proposed subsection 494(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”, etc. Again, I think what you'll find is that people who are in that business will favourably look at this and say, “Look, this actually clarifies what can or what can't be done, and it obviously includes us.”

I wouldn't want to be any more specific, or start identifying who will come within the definition of this—for example, a private security firm—because once you particularize those definitions, you'll end up finding somebody else who isn't included in the definition, although they are a reasonable person to assume that role under the circumstances. This is why, in my answers to Madame Boivin's questions, I said it is a non-exhaustive list that we have here in the front part of the bill, and there's a reason for that: if other situations develop in the future, we don't want to say, “Oh, now we have this gap in the Criminal Code where it's not covered.” When we draft these, we try to draft them not only for whatever situations and challenges we are facing today, but also in such a way that they will encompass future incidents that are similar to the types that we are addressing today.

[Pierre Jacob, NDP, Brome—Missisquoi, QC]

Thank you, Minister.

How much time do I have left, Mr. Chairman? I still have a minute, that is good.

Subsection 494(3) of the Criminal Code requires that a person who has arrested an individual deliver him straightaway into the hands of a law enforcement officer. I would like to know precisely what timeframes are involved. Outside of large urban areas, where there are fewer police, would someone be given more time to hand over an individual to a law enforcement officer? By not setting a time limit for the person to hand over the individual to a law enforcement officer, are we not running the risk of encouraging people to take justice into their own hands?

[Rob Nicholson, Conservative, Niagara Falls, ON]

I think there is a danger if we become too specific.

If we're talking about downtown Toronto, most of us would probably agree that it would be unreasonable if you didn't turn an individual over for 24 hours. You could be in parts of this country where it's not feasible to have a law enforcement agent there, that 24 hours may not be enough time to get someone—a member of the RCMP or whoever is involved with law enforcement. We deliberately don't specify that. We don't create rules that would be applicable in Toronto but would be unreasonable somewhere else in the country, or have a test that works very well, for instance, in Canada's north, where someone from law enforcement may not be readily accessible, and then say, “Oh, that would be reasonable in downtown Toronto.” No, we don't do that. I think we're better off leaving it and saying, okay, what is reasonable under the circumstances.

To use another example, if you arrest somebody here in the city of Ottawa, it would be very difficult for you to try to make the case that you didn't turn the guy over to the police for three days. My guess is that the courts would say that's not reasonable; that doesn't come within the definition. But you could be in a remote community in Nunavut and say, “Look, we couldn't get anybody in here. It was unfeasible to have somebody from law enforcement here within 24 hours or 48 hours.” I think a court would then say, “Yes, that is reasonable under the circumstances.”

We want to make the point, and the case here, that whatever that reasonable test is, we want you to turn this individual over to a law enforcement agency. We are not in the business of having people imprisoning Canadians on their own initiative and detaining them. If you've witnessed a crime and arrested an individual, now turn him or her over, and do it as quickly as possible.

[The Chair, Conservative, Dave MacKenzie]

Thank you, Minister.

Mr. Jean.

[Brian Jean, Conservative, Fort McMurray—Athabasca, AB]

Thank you, Mr. Chair.

Thank you, Minister, for appearing today.

My interest is also in the situation of reasonableness and reasoned force in the circumstances. I know that the use of force to protect property in one's possession is the current wording, but would a person be able to undertake self-defence by using a firearm? I know in the past, in some cases in Alberta, people have continuously come on property, and stolen personal property, and people have used firearms, shot in the air or shot around the people.

Would that be a reasonable use of defence in the circumstances?

[Rob Nicholson, Conservative, Niagara Falls, ON]

I think it is.

Every case is decided on its own, but the individual who has people, for instance, coming on to their property, stealing, destroying, or trying to take possession of their property...the individual who shows a firearm—again, it's what is reasonable under the circumstances. If somebody is trying to steal your notebook, you don't have a right to shoot that person, because that is obviously and patently unreasonable.

I get asked this on a regular basis: what is reasonable? What was the test? Was it the man on the Clatenham bus or something, whatever he thought was reasonable would be the test? We have to apply those tests. In answer to Mr. Jacob, I pointed out that most of us could figure out what's reasonable. What's reasonable in a remote community in Nunavut in terms of turning that individual...is not the same test for reasonableness if you were in downtown Ottawa.

Again, it's the appropriate language that has served us very well, and it turns on the facts of every situation.

[Brian Jean, Conservative, Fort McMurray—Athabasca, AB]

In fact, wouldn't it be fair to say that much of the Criminal Code and the tests used have not been changed since 1892? In fact, the test of reasonableness and a reasonable person actually changes based upon society.

[Rob Nicholson, Conservative, Niagara Falls, ON]

You've made a very good point.

If you were doing your thesis on the whole question of the tests of reasonableness, the jurisprudence has helped define that. What was reasonable in 1840 in Upper Canada, when these provisions were written, would be much different from tests today as to what is reasonable, but nonetheless, the reasonableness test has worked.

You're quite correct. With respect to the Criminal Code, we have an obligation to continuously have a look at it, to make sure it reflects societal needs.

I made the point here when I was here on auto theft. It was pointed out to me by the Attorney General of Manitoba that there were specific provisions for stealing a cow, but no specific provisions for stealing a car. I remember at the time I said I promised we were going to change that—not the part about stealing the cow, that's still an offence—but it's reasonable to have sections with respect to auto theft because, again, that reflects what's happening in society. Just because there were no cars when the Criminal Code was enacted in the 1890s doesn't mean that it's not a serious matter for us today, and that's why we continuously try to have a look at these, and part of what we're doing is updating the laws with respect to defence of property and self-defence.

[Brian Jean, Conservative, Fort McMurray—Athabasca, AB]

I understand in some states it was actually a hanging offence to steal a horse, but I won't go into that.

I'm sure it's not any more in Canada. In fact, I know it's not.

I'm wondering about another situation that arises from time to time, which is obviously the situation that needs to be discussed by judicial means in deciding cases. Often people's homes will be continuously broken into. From time to time, people have set traps in their homes near windows or doors, and those traps sometimes have a fatal conclusion or sometimes maim a person.

Would that be considered something of reasonableness?

[Rob Nicholson, Conservative, Niagara Falls, ON]

It reminds me of being back in law school. There was a case about the individual who dug a pit because people had been trespassing on his property, and the next person dropped 25 feet down into some sort of a pit.

That wasn't reasonable when I was back in law school three decades ago and it's still not reasonable today.

The test of what is reasonable under the circumstances, as you quite correctly pointed out, has changed over the years, but it's what most people feel would be appropriate.

Many of us have alarm systems in our homes, and we try to take precautions, but having booby traps that could maim somebody...I think most people would conclude that's not reasonable under the circumstance. You might have somebody delivering pamphlets that you didn't want to see. We can't have that kind of situation.

Did you want to add something, Ms. Klineberg?

[Joanne Klineberg]

I would just add that there is actually an offence in the Criminal Code for trap setting where there is the likelihood of causing bodily harm. Typically, the traps will be set in advance of there being a particular threat. So they wouldn't be temporarily connected enough with the threat that could justify the use of force in self-defence.

[The Chair, Conservative, Dave MacKenzie]

Thank you.

Madam Borg.

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

Thank you, Mr. Chair.

The new legislation allows the court to consult a list of factors. Can you tell me what the rationale was behind the decision to have people consult the list, or not? Why would it become mandatory?

[Rob Nicholson, Conservative, Niagara Falls, ON]

These are somewhat flexible, as I said in my answer to some of the questions. We didn't want to confine the list and say that's it, this is the list, because the first argument would be, of course, if someone is charged, that they didn't come within the definition of paragraph 34(1)(h) and therefore this defence is not open to them. It may be circumstances that haven't been contemplated yet in jurisprudence or situations that may develop in the future that put it into a slightly different context.

We deal with this all the time. For instance, if you look at the Criminal Code, it refers to telephones. As you know, that's not the only way of communicating anymore. If you sat down 45 years ago, basically that was it—and telegrams and all that. We know that people don't send telegrams to each other anymore, that there are hundreds of ways of communicating, and not necessarily by telephone.

I think we're better off if we write the Criminal Code in a way that doesn't confine it to what is reasonable or what may take place in the future. You'd probably agree with me if on this list there were other legitimate reasons why an individual was using force to protect themselves. You'd say that it's reasonable, but we wouldn't want to get caught by the fact that they only proposed a closed list back in 2012 when they wrote this particular section of the Criminal Code.

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

Since we are going to allow citizens to perform arrests if they have reasonable grounds to believe that a crime has been committed, are we not opening the door to profiling? For instance, in the case of someone who looks like a criminal and wears his jeans a certain way, would we not be encouraging profiling?

[Rob Nicholson, Conservative, Niagara Falls, ON]

No, and this is why these have to be very careful. You don't want to be stereotyping, and you don't want to be subjecting people's opinions to prejudices and that sort of thing. So no, I don't think that would be appropriate. One of the provisions, as you'll notice, in there on self-defence is the previous relationship. If an individual knows this individual to be violent, or they've been the subject of the violence themselves, that adds to the reasonableness of them taking steps to protect themselves from an individual such as that.

So it is a non-exhaustive list, but no, we can't and should never get into the idea of profiling people strictly on the basis of some prejudice that an individual may have. We don't want to go there, and this is why the bill is carefully drafted. It may be more reasonable for you to take steps if you have been a victim of violence from this individual, but again, in the absence of something like that, we have to be very careful. We can't legislate people's ability to claim a protection either because of their stereotypes or their prejudices against any particular individual or group.

[The Chair, Conservative, Dave MacKenzie]

We've come to the end.

Thank you, Minister. I think we're just about dead on with the time that we had available. My understanding is the two officials will be able to stay with us for a bit longer, and there may be some questions. So although you'll leave, I think we'll have adequate answers here for any other questions we may have.

Mr. Rathgeber, the two officials are going to stay with us, and as soon as they're ready, if you have any questions for the them, please go ahead. You have five minutes.

[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.

[Joanne Klineberg]

That is actually one of the ways in which the language on that particular issue will be changed by Bill C-26. The multitude of provisions now in effect limit the responsive actions of an accused to the necessary use of force, that is, no more force than necessary. But it is all premised on the use of force. One of the things that Bill C-26 does is recognize that there might be other evasive actions that a person would take in a threatening circumstance. Those actions could potentially be criminal in ways that don't involve the application of force on another person. The wording in Bill C-26 does talk about whether the act that is committed is reasonable in the circumstances.

The language of use of force would be replaced with more general language. It would permit, for instance, breaking into a house to escape someone. It's likely that actions like that could be used as a defence under the current law, under the common-law defence of necessity. Self-defence works as a subset of the necessity defence. If the purpose is to protect yourself from a threat that another person is launching against you, it's more appropriate to conceptualize that conduct as self-defence as opposed to the defence of necessity. This accounts for the expansion of the language.

[Brent Rathgeber, Conservative, Edmonton—St. Albert, AB]

Thank you.

Mr. Jean and I both come from Alberta, and there have been some high-profile cases in rural Alberta in the last couple of years where law enforcement is some distance away and events have occurred on private property that led to chases off private property. Individuals ended up getting involved in criminal activity.

I'm not going to ask you to comment on those cases. What I'm concerned about—and I do support the legislation, let's be clear on that—is that the short title “Citizens Arrest and the Defence of Property and Persons” might give a false level of assurance to individuals who, though they might not want to engage in vigilantism, might yet want to defend their property to an extent that is not contemplated by this act.

What type of educational campaign does the Department of Justice envision to educate Canadians on the somewhat narrow protection this bill will give for the defence of property?

[Catherine Kane, Director General and Senior General Counsel, Criminal Law Policy Section, Department of Justice]

That's a valid point. We want Canadians to fully understand the law and its limits. When this act is proclaimed into force, we intend for it to be accompanied by explanations, whether we call them backgrounders or fact sheets, that would clearly delineate to Canadians the changes in the law and the limits of those changes. Whether they are relying on the defence of self-defence or the defence of property, or whether they are wanting to know more about the law of citizen's arrest, we want them to know that we're not encouraging vigilantism. They should know that the first recourse is always law enforcement, and that where you're defending your property you can do only what's reasonable.

The common law has made it clear that defence of property alone does not justify the use of deadly force. We want to make that clear. In all other cases, we're looking at reasonableness in the circumstances. To the extent possible, we would make these explanations available in user-friendly language for distribution to relevant stakeholders.

[Brent Rathgeber, Conservative, Edmonton—St. Albert, AB]

Thank you, Mr. Chair. Those are my questions.

[The Chair, Conservative, Dave MacKenzie]

Mr. Harris.

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

Thank you very much, Chair.

I'll pick up on that last point. I think the previous laws—I talked about the policy side with the minister—did make a distinction between movable property and real property or dwelling houses, specifically that you couldn't cause bodily harm in the defence of movable property. Then there was a different rule for preventing the invasion of your house; under section 40, you could use as much force as is necessary to prevent someone from invading your property.

You said you wouldn't think it would be reasonable to use deadly force in defence of property, and you used the word “generally”, and I agree. In fact, Australia, we've been told, has a rule that says you cannot use lethal force in defence of property, and we did have a rule that said you can't use bodily harm in defending against movable property. If someone is trying to steal your purse or whatever, you can't stab them.

Those have been left out of this. It's one thing to say, well, we all know what reasonable is, but we don't all know what reasonable is and we may have very different attitudes. There may be different attitudes in some parts of the country than in others, and there may be different attitudes among some people than among others. At the end of the day, it's going to be a judge or a jury deciding what's reasonable in the circumstances.

I'm a little concerned about the lack of guidance this provision actually gives. Can you tell us why you left that out and why you made no distinction between someone having their home invaded, for example, and someone having their purse snatched?

[Catherine Kane]

I can begin to answer and then my colleague will likely elaborate further.

In case I misstated something, the point I was making was that with respect to defending property alone, it's the position of the common law at present that you can't use deadly force just to defend your property. We have not changed that in these proposed amendments.

However, in many cases, defence of property soon turns into defence of person. As you've noted, in every case it's going to be a judge looking at exactly what transpired in the particular circumstances of the case. So if my home were invaded—a home invasion sort of by definition has that added dimension of bodily harm or threats being done to the occupants of that home. It's not just that my home is invaded without my being there, because that's a break and enter, a robbery, but there is an element of personal violence. Then it would quickly be defence of self as well as defence of property. The reasonableness is determined in the circumstances of that event—whether there's violence being used against me, violence being used against my children.

Joanne Klineberg is best positioned to indicate why we're not going down the road of identifying whether it's movable property or a dwelling house or others and why we're going with one simplified provision that will adapt to the circumstances.