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.