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.