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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.

On the agenda

MPs speaking

Also speaking

Hamish Stewart  Professor, Faculty of Law, University of Toronto, As an Individual
Greg Preston  Edmonton Police Service, Legislative Amendments Committee of CACP, Canadian Association of Chiefs of Police
Alex Scholten  President, Canadian Convenience Stores Association

12:15 p.m.

Professor, Faculty of Law, University of Toronto, As an Individual

Hamish Stewart

Yes, at the Ontario Court of Appeal; that's correct.

12:15 p.m.

Conservative

Brian Jean Conservative Fort McMurray—Athabasca, AB

How long did you practise criminal law?

12:15 p.m.

Professor, Faculty of Law, University of Toronto, As an Individual

Hamish Stewart

I have never practised criminal law except in the restricted setting of doing student legal aid work when I was a law student--where many of my clients were alleged shoplifters, I might add. But that's a long time ago.

12:15 p.m.

Conservative

Brian Jean Conservative Fort McMurray—Athabasca, AB

And you passed the bar in 1998?

12:15 p.m.

Professor, Faculty of Law, University of Toronto, As an Individual

12:15 p.m.

Conservative

Brian Jean Conservative Fort McMurray—Athabasca, AB

So you practised law after that for legal aid students.

12:15 p.m.

Professor, Faculty of Law, University of Toronto, As an Individual

Hamish Stewart

No, I have never practised law as a lawyer.

12:15 p.m.

Conservative

Brian Jean Conservative Fort McMurray—Athabasca, AB

Okay.

12:15 p.m.

Professor, Faculty of Law, University of Toronto, As an Individual

Hamish Stewart

I have been teaching full-time at the University of Toronto since 1993.

12:15 p.m.

Conservative

Brian Jean Conservative Fort McMurray—Athabasca, AB

Okay. And you've written three books on evidence law. I can't remember the other one.

12:15 p.m.

Professor, Faculty of Law, University of Toronto, As an Individual

Hamish Stewart

I've written on evidence. I've written a textbook on evidence as well as a treatise on evidence, and recently a book on section 7 of the Canadian Charter of Rights and Freedoms.

12:15 p.m.

Conservative

Brian Jean Conservative Fort McMurray—Athabasca, AB

I can tell you from my experience in relation to the criminal law that for the most part judges have a lot of flexibility and latitude relating to the interpretation. I would suggest in this particular case that they will indeed read in necessity and proportionality as primary concerns. Given, of course, common law for hundreds of years, given what's happened in the High Court of Australia and the Privy Council, which of course our courts continue to refer to and look at, I would suggest that given that both of those courts use both necessity and proportionality in self-defence, this will continue.

I did want to ask about a practical example. You mentioned in your paper that defence is not available where it should be. I've been racking my brain, because I did do five or six trials a week, and I couldn't think of one that would apply to what you're suggesting. I was hoping that you could give me an idea about that.

12:20 p.m.

Professor, Faculty of Law, University of Toronto, As an Individual

Hamish Stewart

I think you're right to say that it would be possible to interpret this clause as prioritizing necessity and proportionality over the other factors listed in proposed subsection 34.(2). I think the clause is open to that interpretation.

I think it would give clearer guidance to trial judges and juries if it were made explicit rather than being left in a list of factors. As Mr. Preston said, in response to a question about reasonableness, none of these concepts is perfectly precise, as law never is. I'm concerned that--

12:20 p.m.

Conservative

Brian Jean Conservative Fort McMurray—Athabasca, AB

I was just wondering, and I only have a minute....

12:20 p.m.

Professor, Faculty of Law, University of Toronto, As an Individual

Hamish Stewart

Oh, you want the example.

12:20 p.m.

Conservative

Brian Jean Conservative Fort McMurray—Athabasca, AB

I want a practical example. I'm more of a practical person, and I'm wondering if you could give me an example of the defence not being available where it should be, because I racked my brain on it.

12:20 p.m.

Professor, Faculty of Law, University of Toronto, As an Individual

Hamish Stewart

Imagine someone who is being pushed around, let's say, in a bar. So the defender's being pushed around by the attacker and the defender uses reasonable and proportionate force to push that person back and he gets charged with assault.

The force was necessary and proportional, just pushing and shoving, so it's not really that big a deal. But the proposed subclause says that the court may also consider the person's role in the incident. Does that give an opportunity for the prosecution to argue that the defender was being rude and obnoxious and therefore sparked the incident and should be deprived of self-defence?

I realize people may disagree about this example, but in my view those triggering incidents should not be considered part of the self-defence claim if they're at that low level of just being rude and obnoxious. I'm concerned that this may invite considerations that are extraneous to self-defence as I understand it.

12:20 p.m.

Conservative

Brian Jean Conservative Fort McMurray—Athabasca, AB

I'm done. I love the ability to discuss with academics, I really do. Thank you, Professor Stewart.

12:20 p.m.

Conservative

The Chair Conservative Dave MacKenzie

Mr. Cotler, you were out of the room, but we'll let you back in this round.

February 14th, 2012 / 12:20 p.m.

Liberal

Irwin Cotler Liberal Mount Royal, QC

Thank you, Mr. Chair.

I want to compliment our witnesses.

My question would be to Professor Stewart, though it could be answered by any others. I appreciated the three elements you've put forward and also how the criteria could be a danger, could trump the three elements and result in an acquittal or even a conviction.

My question has to do with a controversy that arose out of a question put by Brian Jean to the minister about the defender firing warning shots at somebody coming onto his property and stealing things. The concern was whether the minister's response about the warning shots would be encouraging vigilantism. I think the minister was maybe taken out of context.

My question is on the example itself, and not necessarily the minister's response to it. How would your elements relate to that kind of situation?

12:20 p.m.

Professor, Faculty of Law, University of Toronto, As an Individual

Hamish Stewart

I think this example would fall under the defence of property in proposed section 35 rather than self-defence in proposed section 34, but the issues are similar.

The trespasser comes on your property, and that's a wrongful act. Section 35, under the current law, gives the property owner some power to repel a trespasser in that circumstance. The question is whether it's necessary, whether it's proportionate.

Proposed section 35 refers to whether the act is reasonable in the circumstances. It does not provide the list of factors mentioned in proposed section 34 and does not refer specifically to the question of proportionality. My instinctive response to that example is that firing shots in those circumstances is a disproportionate reaction to the threat, unless the threat is greater than you have described it.

There's a well-known Ontario self-defence case from 1975, the Baxter case, where shots were fired in a situation like that and the court was concerned that this was an over-reaction to the threat posed by the trespasser. I think this provision would be easier to explain to juries and to apply if some of these elements were made more explicit.

12:25 p.m.

Liberal

Irwin Cotler Liberal Mount Royal, QC

Right.

Would any of the other witnesses like to respond as well?

Mr. Preston.

12:25 p.m.

Supt Greg Preston

The facts always dictate the answer to any question, so I don't believe I can give you one definitive answer and say it can never be done, nor can I say it can always be done. It really is dependent on the facts.

One thing is quite clear: from a police perspective we certainly don't encourage the use of firearms. We recognize that there is danger whenever one is discharged, regardless of whether it was aimed to shoot somebody or aimed as a warning. So that obviously raises concerns for us. But I'm not really in a position to say that can never be done, because there will be occasions when it is reasonable.

I can envision circumstances in which the offenders who are on the person's property are gang members. Or you're in an isolated community where the police are hours away, and you can articulate why you were concerned about your safety. You'd have to evidence that. So there are any number of facts that could dictate an answer to this.

What is clear, though, is that we are certainly not encouraging people to bear arms in every incident--but neither can I say they should never be allowed to do so.

12:25 p.m.

Conservative

Brian Jean Conservative Fort McMurray—Athabasca, AB

I noticed that when Mr. Preston was talking about all of those issues of reasonableness and factors, Mr. Stewart was nodding his head in agreement. His nod isn't on the record, but I'd like to get that on the record.

12:25 p.m.

NDP

Françoise Boivin NDP Gatineau, QC

Good God.... Nice try, Brian. We're not in court.