Evidence of meeting #19 for Justice and Human Rights in the 41st Parliament, 1st Session. (The original version is on Parliament’s site, as are the minutes.) The winning word was property.
A recording is available from Parliament.
President, Canadian Police Association
I did review it, but I'd have to look at it again. I'll assume that you have.
Conservative
Stephen Woodworth Conservative Kitchener Centre, ON
Well, that's what it says: only if the individual making the arrest reasonably believes that it's not feasible for an officer to make the arrest. I assume you understand that this means that if it is feasible for an officer to make the arrest, the citizen should not, but instead should make sure that an officer gets there to do it. Does that sound...?
Conservative
President, Canadian Police Association
I'm sorry. I keep interrupting you.
That's how I understand it. It would be my expectation, and the expectation of the front-line officers who I represent, that the first course of action should be to let the police effect an arrest where it's appropriate to do that.
Conservative
Stephen Woodworth Conservative Kitchener Centre, ON
Right, and that's what the section contemplates, but there was evidence earlier that law enforcement, by necessity, has to prioritize calls, and therefore an officer is not always immediately available to come and make an arrest in a property offence case. Would that be at least within the realm of reasonable?
President, Canadian Police Association
Well, I think it just depends on the circumstances, so it's not completely accurate to suggest that police won't respond to a property offence no matter what. It depends on the circumstances.
If a person phones 911 and describes a set of circumstances where there's a heightened sense of risk to the individual or to the property owner, then the priority in terms of a response is much higher. On the other hand, if there is less risk, then the call is prioritized in a different manner.
It depends on the circumstances, but if you're talking about a 100-acre piece of property and an observation that someone was seen on a piece of property miles away from the caller or the potential victim, then it may be, depending on what else is going on, that it takes longer to respond.
NDP
Charmaine Borg NDP Terrebonne—Blainville, QC
Thank you.
My first question is for Mr. Gottardi of the Canadian Bar Association.
In your second recommendation, you recommend amending the start of subsection 34(2) as follows: "The court shall consider the relevant circumstances of the accused, other parties, and the act, including but not limited to the following factors…".
So you are recommending that the possibility of consulting the list of factors be made mandatory. What was the motivation for that recommendation?
Vice-Chair, National Criminal Justice Section, Canadian Bar Association
Well, I can say that we've had discussions around the inclusion of a list in a section like this that is setting out self-defence. Proposed subsection 34(2) sets out a list of various factors that a judge is supposed to use in determining whether the defensive act was reasonable in the circumstances.
One of our concerns with including a list as it is in its current form is that this might signal to judges that they must consider each and every factor and apply it in every case. That would result in a subtle but important change in what the law is currently.
For example, proposed paragraph 34(2)(b) says: “the extent to which the use of force was imminent and whether there were other means available to respond to the potential use of force”. One might read that as requiring a judge to consider whether or not the person could have retreated, rather than acting out in self-defence, as they could. That would represent a change in what the law is now, because there is not a requirement on an individual to retreat from a threat in every case.
So the very limited amendment that we had suggested here was to just include a qualifier of “including but not limited to the following factors”. Our hope there was that this would signal to judges that they would only consider the factors in that list that had relevant application to the case at bar and that they weren't required to apply every single factor to the list. It's a small suggested amendment, but that's the rationale and that is the concern behind it.
NDP
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?
Vice-Chair, National Criminal Justice Section, Canadian Bar Association
Well, this is part of the problem, I suppose, and part of our general concern. The power of citizen's arrest requires a regular Canadian citizen to hopefully have some knowledge of the law, but if they don't, then they're on their own in determining certain things in this provision. Has in fact a criminal offence been committed? Is it a serious enough offence that they're allowed to intervene? Is it indictable? What is reasonable time? If they saw someone stealing from their store the day before, is it reasonable to arrest them the next day?
These are all very difficult judgment calls that lawyers and judges are unable to answer today as we discuss this legislation. In my submission, it's completely unrealistic to think that an average member of the public will be very confident in trying to interpret some of these concepts.
What this means is that we will have some examples of people intervening and arresting people where they're not justified in acting, where the end result will be, at best, that they're criminally charged, and at worst, that they're very seriously injured themselves.
Conservative
Conservative
Brent Rathgeber Conservative Edmonton—St. Albert, AB
Thank you, Mr. Chair.
Thank you to all the witnesses, those who are here and those who are in British Columbia. Thank you for your presentations.
I'm going to follow up with Mr. Gottardi on the same line of questioning that Ms. Borg pursued.
First of all, let me say that I appreciate that the Canadian Bar Association generally supports this legislation. It may be the first time ever with respect to a justice bill introduced by this government, so I appreciate your general support. But you do have some concerns, and it's those concerns I wish to broach.
In response to Ms. Borg, you indicated some concern about proposed subsection 34(2). You opined that a court must consider in all circumstances the enumerated list of factors. But I take issue with that. The wording in proposed subsection 34(2) is quite specific in that it says, “the court may consider, among other factors”. So not only is the court's obligation permissive rather than mandatory, it deliberately indicates that it's not an exhaustive list, because there may be other factors.
I'm curious, Mr. Gottardi, why you believe it's a deficiency of the bill that a court must consider in all circumstances the enumerated list in proposed subsection 34(2).
Vice-Chair, National Criminal Justice Section, Canadian Bar Association
I thank the member for his support of our organization's support of the bill.
I can say I agree with you in that it seems clear from the drafter's intent that the list is really not meant to be a closed, exhaustive list of factors that judges can consider. But the quite intense consultation that we undertook—we talked with our prosecutors and our practitioners, our defence lawyers, and had anecdotal experience and the experience of our members—told us that when judges are given or faced with a list, there's a natural tendency to go through it and effectively treat it almost as a checklist: Does this apply? Does this apply? Does this apply? It's that natural tendency, when one sees a list, to go through each one and apply it to the case before them.
So our thought was that it needed to be emphasized and perhaps even re-emphasized that it is not an exhaustive list, and in fact it's only the relevant factors in that list that need be and should be applied to a particular case.
Conservative
Brent Rathgeber Conservative Edmonton—St. Albert, AB
But you'll agree with me that the verb “may” makes it permissive rather than mandatory?
Vice-Chair, National Criminal Justice Section, Canadian Bar Association
Yes, I think that's clear.
February 9th, 2012 / 12:10 p.m.
Conservative
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.
