Evidence of meeting #20 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 reasonable.
A recording is available from Parliament.
Conservative
Kerry-Lynne Findlay Conservative Delta—Richmond East, BC
Do you feel that the changes our government is proposing would give your members some more confidence in how to deal with criminality when they are victimized or presented with it in their store?
President, Canadian Convenience Stores Association
Absolutely. It creates a situation where we have more flexibility in how we can protect our property by not simply being able to act while a crime is being committed but in a reasonable time period afterwards. That definitely gives our members much more flexibility, and we'd very much encourage that.
Conservative
Kerry-Lynne Findlay Conservative Delta—Richmond East, BC
I assume as well that part of your training you're talking about, or instructions, would be to continue to tell those who might be on the front line in the stores that they need to contact law enforcement in whatever way they can at the earliest time possible. Would that be correct?
February 14th, 2012 / 12:35 p.m.
President, Canadian Convenience Stores Association
That is absolutely correct. Our members first and foremost want to make sure that they're not putting themselves or their customers and employees in harm's way. Unfortunately, the reality of the situation is they often have to.
I would note in the case of Mr. Chen that in his testimony he outlined the fact that the day before this incident came up he had a shoplifter who was caught in the act and they called police immediately and waited four hours for the police to show up at their site, just because of the priority of the situation and the priority level of the crime. That gives you an idea of what we as retailers go through on a day-to-day basis. So the laws we're talking about would give us much more flexibility, but we realize that we always want the police to be doing the law enforcement and not us. We can help them by having that flexibility.
NDP
Charmaine Borg NDP Terrebonne—Blainville, QC
Thank you. My first question is for Mr. Stewart.
In the brief you submitted to the committee, which is indeed very complete, you mentioned a concern regarding the fact that a judge could choose to base his finding on only part of section 34, the list of reasonable grounds. I'd like to know how you think we might curtail judiciary discretion in this matter?
Professor, Faculty of Law, University of Toronto, As an Individual
As I said before, and as Mr. Preston also said, in the law and particularly, I think, in the law of defences, we're never going to get away from the concepts of reasonableness and proportionality.
We're never going to have a completely precise standard for deciding these things. The reason I'm suggesting that it would be better to highlight the three elements I began with, and then treat the other factors as potentially relevant to them, rather than putting them all into one set of factors, is that I do think it would confine the discretion of the judge a little bit more. There's always going to be some discretion here, but I think it would confine it a little bit more.
I should say, this is not just the discretion of judges; it's the discretion of juries in murder cases. These will be where self-defence is raised. These will typically be tried by a jury. Under the bill as it stands, the jury would have to be instructed in accordance with this section: “Members of the jury, you need to decide whether the crown has proved beyond a reasonable doubt that this act was not reasonable in the circumstances, and in deciding that you should consider these factors.” Then when the jury comes back with its verdict, the crown, the accused, and the public are not really going to know exactly what it was that moved the jury one way or another.
If we put the jury instruction in terms of the elements being the wrongful threat, the necessity of the response, and the proportionality of the response, I think we'll have a better idea of what it is juries are deciding when they're deciding these questions.
I hope that answers your question.
NDP
Charmaine Borg NDP Terrebonne—Blainville, QC
Yes, thank you.
I would have a second question for you. You did not mention this in your brief, but you might have something to say about it.
Last week we heard about battered woman syndrome from some witnesses. With reference to section 34(2)(b), some felt that this could lead to some confusion if the woman did not go elsewhere, that is to say if she did not consult a group, for instance. Some wondered if she could still invoke self-defence.
Can you tell me your thoughts on this?
Professor, Faculty of Law, University of Toronto, As an Individual
If I'm reading it correctly, I don't think the bill prevents the battered woman from raising the defence in that situation. It does, however, ask the fact-finder to consider whether the use of force was imminent, and whether there were other potential means, so that's going to be a factor to be considered along with the others.
In the leading case on this topic, the Lavallee decision from 1990, the Supreme Court of Canada interpreted the phrase “reasonable apprehension of death or grievous bodily harm” in subsection 34(2) as it now stands. The crown, the prosecution in that case, tried to persuade the court that this meant an imminent threat, and the court said it didn't have to be imminent but asks whether it was a reasonable threat. It could be coming along later.
I don't think this section excludes that, so it would still be possible to make that kind of argument in those types of cases. My suggested reframing of the section doesn't exclude it either, because the question would still be whether it was necessary to do what was done, whether it was a proportionate response in light of the situation the person was in. What the Supreme Court emphasized in Lavallee itself was the role of the expert witness's testimony in explaining to the jury the situation this person was in, which otherwise looked like a very unsympathetic case for self-defence. I don't think either this or my version would exclude that.
Conservative
Conservative
Stephen Woodworth Conservative Kitchener Centre, ON
Thank you very much, Mr. Chair.
Thank you to all of the witnesses. I've appreciated your comments, each one of you, which I thought were very thoughtful.
I hope Superintendent Preston and Mr. Scholten won't mind if I say that I understand that you're here because you're representing others, whereas I will say to Professor Stewart that I doubly appreciate your attendance. I know that you're here because you love just and honest laws and sound principle. I hope that you and I are kindred souls in that respect. I appreciate that, and I wanted you to know it.
Having said that, though, I'd like to engage with you a little bit regarding your comments. In particular, I'd like to focus on proposed paragraph 34(2)(h): “whether the act committed was in response to a use or threat of force that the person knew was lawful”.
Now, we've already discussed the fact that this is subject to an overriding requirement of reasonableness. Quite frankly, I'm not sure that I can even imagine a case in which a judge or jury would conclude that defending against the lawful use of force was reasonable. Assume, for the sake of argument, that some judge or jury had specifically had their attention brought to the fact that a person knew that the use or threat of force he or she was defending against was lawful. If the judge and jury still concluded that it was reasonable for the accused to have offered whatever defence he or she did, I would be okay with that. In other words, the underlying principle on which I would be happy to rest is the notion that a judge or a jury should have some residual discretion to conclude that an individual's conduct was reasonable.
Is there any chance that I might convince you that residual discretion for a judge and jury to conclude that the conduct was reasonable isn't really a dramatically bad thing? Is there any chance I could convince you of that?
Professor, Faculty of Law, University of Toronto, As an Individual
There's always a chance. I'd like to think of myself as not having completely settled views on any issue. Therefore, there's a chance.
I endorse the first thing you said very much. I do find it difficult to imagine a set of facts where this factor could be the decisive one, given all the other things that might be in play in a case of self-defence.
Conservative
Stephen Woodworth Conservative Kitchener Centre, ON
It would not be the decisive one, in other words.
Professor, Faculty of Law, University of Toronto, As an Individual
Yes. To that extent, I think it's hard to imagine what role it's supposed to play. Of course that leads me to wonder why it's in there. I'm wondering whether this factor, the use of force by law enforcement, is clearly excluded by proposed subsection 34(3) of the bill, which clearly says that this self-defence provision doesn't apply if the person is responding to the authorized use of force by a law enforcement officer--
Conservative
Stephen Woodworth Conservative Kitchener Centre, ON
Because of our time limitations, I just would like your observations on whether it is not perhaps a good thing to leave a residual discretion for reasonableness with the judge or the jury.
Professor, Faculty of Law, University of Toronto, As an Individual
My sense at the moment is that there may be sufficient discretion within the concept of what is a necessary and proportionate response, because proportionality is not a precise concept either. Self-defence cases are replete with observations by judges to the effect that you can't be expected to weigh exactly how much force you need to use in response to a serious threat to your life or your person. So I'm wondering what this would add to those other regions of discretion.
Conservative
Stephen Woodworth Conservative Kitchener Centre, ON
At the very least, it causes the judge or the jury to specifically put their minds to each of these points. It would be in the instructions. I just have to say that I'm okay with it. And it's often that the shoe is on the other foot. We often get witnesses coming here to tell us to give judges more discretion. In this case, we're giving them a little discretion, and I'm okay with it. I will have to leave it for you to ponder, perhaps.
I have one more question, if I have time, for Superintendent Preston. The issue is that right now, as I understand it, if people are charged with an offence because they were trying to defend themselves or were trying to arrest someone who had committed an offence against them, it may often be the case that the law is so unclear that the police, just as a default position, have to charge such individuals and let the courts sort it out. My impression is that these amendments will perhaps avoid the necessity of some of those charges. Does that seem right to you?
Supt Greg Preston
I would like to think that we don't charge people just because it's the easier thing to do.
Conservative
Supt Greg Preston
I agree with you, and that's one of the comments I made at the beginning. We do look to this to be clearer than it currently is, and therefore we endorse it. It should make things easier for our members. There are situations that are tough. You can have a tough situation, one in which you could potentially have some serious injuries. The grounds appear to exist. The charges are being laid right now. I think this will assist us in delineating, better than we do right now, where that line is, what is lawful versus what is unlawful.
Conservative
Stephen Woodworth Conservative Kitchener Centre, ON
And there will be more time for other more important things. Thank you.
NDP
Libby Davies NDP Vancouver East, BC
Thank you very much, Chairperson.
Thank you to the witnesses for coming today. We're having a very interesting discussion on this bill.
I'd just like to raise one question. I think one of the things the committee is looking at is the balance. Has the right balance been struck in terms of citizen's arrest and the right to defence? I know it's very difficult to speculate on what the outcome of the proposed law will be in terms of any further challenges, but when you look at this bill, it includes not only the person, say, in the store, the store owner or an employee, but also persons authorized by them. So I assume that could mean security people. I know in some business areas there are security people hired by a business association. I know in Chinatown in Vancouver we have such a situation. So the person authorized by them might be hired through an association.
The concern I have is whether this bill will open up a greater possibility for people to actually be targeted based on stereotypes, and whether someone who's authorized or a person in the store, the keeper or an employee, because of the way someone looks or acts, would believe they were committing an offence.
I wonder, Mr. Stewart, if you could address that. The bill does say that they can arrest someone committing a criminal offence, so it leaves us with the impression that you somehow have to see them, but even noting these CCTV cameras, what you see in a little camera is not a hundred percent necessarily what actually might be going on. So I am concerned as to whether this might leave the door open to people actually being targeted because of the stereotype involving something that they wear or the stigma they have of being someone who looks like a criminal, who looks like a drug user, who looks like someone who's up to no good, that kind of thing. Does it leave the door open for more arrests, false arrests, based on that premise?
Professor, Faculty of Law, University of Toronto, As an Individual
All right. I haven't thought as much about the proposed section 494 as about the rest of the bill, but I'll try to give an answer.
I think that in the bill as it stands, the requirement that a person be found committing an offence has been interpreted in others parts of the Criminal Code to mean there exists a reasonable belief that a person is committing the offence. Mr. Preston has suggested expanding that to reasonable grounds to believe that an offence has been committed, even if the person exercising the power doesn't see it themselves.
I don't think the danger you point to can be avoided entirely in practice, but stereotypical beliefs about a person's behaviour, it seems to me, could not form part of a reasonable basis on which to exercise the power.
I guess that would be my suggested way of controlling it. So if the person exercising this arrest power says “Well, I thought the person was shoplifting because...” and then gives several reasons, and some of those reasons include stereotypes about a certain class of persons, then I think those could not count as part of the reasonable grounds, and that reasoning might affect the lawfulness of the arrest that was made. That's my opinion, but I don't think there's any way to eliminate that entirely in practice.
Mr. Preston might have something to add to that.
Supt Greg Preston
I think, with respect, the human frailties you point to exist with the shop owners themselves potentially. So if you bring loss prevention officers in, they possess those same potential frailties.
So I don't see this as expanding.... In fact it already exists. The LPOs, the loss prevention officers I spoke of, are the ones who are actually carrying out a large portion of the arrests in the larger chains. In the smaller chains, obviously, it is the shop owners. So when you look at it, really it goes both ways. Whether it's the shop owner or the loss prevention officer, they still have to be able to apply the law lawfully. They can't go to these types of grounds that aren't grounds. They're impermissible inferences. You can't go there.
So I'm not too concerned about it at all. What I'm more concerned about is the fact that people are acting under circumstances that I believe most of society would expect, and yet right now there appears to be a gap, because, as you pointed out, it's the “finds committing” that is the problem that I think needs to be considered by this committee, the fact that in essence we have a broad class of citizens typically being the agents of the property owner, who are entrusted to carry out this activity because the police can't be in all places. And yet there is a gap, and I believe there's a gap even in the proposed legislation.
