Justice Committee on Feb. 28th, 2012

[Chi-Kun Shi]

He's unable to estimate.

[Brent Rathgeber, Conservative, Edmonton—St. Albert, AB]

Your store is a small convenience store?

[David Chen]

Yes. My store is almost 500 square feet. Sometimes the customer takes only $5 or $10. I had one customer, more than one customer, who at Christmastime took more than $100 out of my store.

[Brent Rathgeber, Conservative, Edmonton—St. Albert, AB]

Sure.

Your store's not large enough either in physical size or in the size of the business to hire private security--would that be correct?

[David Chen]

I can't hire private security.

[Brent Rathgeber, Conservative, Edmonton—St. Albert, AB]

Sure. I understand you might have video surveillance, but you can't hire private security?

[David Chen]

No.

[Brent Rathgeber, Conservative, Edmonton—St. Albert, AB]

Thank you.

I have a couple of questions for the lawyers on the panel, first to Ms. Dufour or your partner.

With respect to subclause 34(1), I'm perplexed as to why you believe that legislating in the negative is inferior to legislating in the positive. You raise issue with the negative wording “a person is not guilty of an offence” and would prefer the positive wording “everyone is justified in repelling force”.

I don't know that I understand the distinction, but my initial reaction is that if you want to discourage potential vigilantism, you might be better off legislating in the negative, as opposed to creating a positive impression, as one might be justified in doing. I want you to explain to me why you think that legislating in the positive is a more positive result.

[Giuseppe Battista]

Our view is that historically the right to self-defence is something recognized in legislation, and it is legitimate for people to repel force by force when they're attacked. All we are suggesting is that the wording of the legislation should suggest that, should indicate that.

I don't think legislating in the negative will in any way diminish a person's rights. But when we ask what the law states and what the law stands for, the law states that we don't want people to be using violence, but it also stands for the fact that if individuals are attacked, they may legitimately repel force. So it's a recognition of that legitimacy, not an invitation to use violence, obviously.

[Brent Rathgeber, Conservative, Edmonton—St. Albert, AB]

Mr. Abergel, this is the second time I've heard concerns over the non-exhaustive permissive list in subclause 34(2), where advocates and barristers have been concerned about how that might be interpreted. I wasn't convinced last time that it's improperly drafted, but maybe you'll have a better chance at me.

In your opening you talked about jury instructions and that all the factors in subclause 34(2) really come down to gravity and immediacy. But do you not agree that if you removed paragraphs (a) to (h) and only had the words “gravity” and “immediacy”, it would provide a jury with absolutely no benchmarks to measure a defendant's conduct against?

[Oliver Abergel]

I see your point, honourable member. I think that in each individual case, a trial judge, as is their wont, will focus the jury on the specific factors of that particular case. So if you're dealing with a case of two men fighting, you wouldn't need to get into gender or potential issues relating to a previous domestic relationship. A trial judge would most certainly focus the jury on the issues of that particular case. I think a jurist can better do it than a well-meaning.... The list is well-meaning; there's nothing wrong with the factors. Our only point is that they're all simply examples of necessity or proportionality.

[Brent Rathgeber, Conservative, Edmonton—St. Albert, AB]

So your concern is that the list isn't—

[The Chair, Conservative, Dave MacKenzie]

Your time is up, Mr. Rathgeber.

Go ahead, Ms. Borg.

[Charmaine Borg, NDP, Terrebonne—Blainville, QC]

Thank you very much.

I missed your presentations, which is unfortunate, so I apologize in advance if I repeat myself or ask you to repeat something. We are fighting on a number of fronts, and we unfortunately cannot be everywhere at the same time.

My question is for the representatives of the Barreau du Québec.

The people from the Canadian Bar Association said they were afraid there would be an imbalance between the subjective and objective elements of this bill. Do you have any suggestions to make to us to improve that balance, or do you think the bill is balanced enough?

[Giuseppe Battista]

In our opinion, the bill is well drafted. I understand the fears raised by others, but we believe the issue here is judicial discretion, evaluation. The bill indicates that the factors cited should be considered, but there are others. That is what I meant earlier when I answered the question about the use of the word "notamment". When judges instruct juries or assess the issues on a case-by-case basis, they will have to use their good judgment.

Obviously, the fears concern how the act is interpreted. We believe that judges will interpret these provisions as they have done in the past. Even in cases where the provisions were not as clear as they might have been, the judges have managed to ensure that the act was clear enough.

We believe that, generally speaking, with these amendments, this is positive. We do not have the same concerns, although we understand them. We believe that judges will know how to navigate these waters.

[Charmaine Borg, NDP, Terrebonne—Blainville, QC]

Thank you.

You are afraid we are encouraging citizens to conduct arrests or to put themselves in dangerous situations. We want to include a provision in the act addressing situations in which an arrest by a peace officer is impossible. In those instances, people must have reasonable grounds to believe that a peace officer is not available. Do you think this measure might encourage a citizen to think twice before arresting someone, or do you believe that it is still not strict enough?

[Giuseppe Battista]

Honestly, I think that, when citizens act this way, they are not thinking about the exception in the act; they are acting because they are the victims of a situation. Our fear with regard to this provision concerns the reference to a reasonable time. What is a reasonable time? Here I have heard people suggest one hour, half an hour and so on. The truth is that a reasonable time is not defined and that it will be a case-by-case matter. In our opinion, that expression and that reality could cause some problems.

It is not the interpretation of the act that is causing a problem. There was an unfortunate case, which was resolved in a positive manner. Our fear is that, by introducing the idea of reasonable time, we are straying from the moment at which the offence is committed, introducing subjective elements and elements that may unfortunately give rise to situations that were not anticipated or desired by anyone.

[Charmaine Borg, NDP, Terrebonne—Blainville, QC]

Representatives of the security guards association told us they wanted us to ensure that the use of evidence from electronic surveillance, particularly cameras, was expressly included. From what I understand, it is already case law that such material may serve as evidence. Do you think it would be necessary to include it expressly or do you believe that the case law is sufficient?

[The Chair, Conservative, Dave MacKenzie]

Please give a short response.

[Giuseppe Battista]

I do not believe the act needs to be extended to enable individuals other than police officers to resort to those means.

[Charmaine Borg, NDP, Terrebonne—Blainville, QC]

Thank you.

[The Chair, Conservative, Dave MacKenzie]

Thank you.

We'll go to Mr. Jean.

[Brian Jean, Conservative, Fort McMurray—Athabasca, AB]

Thank you, Mr. Chair.

Thank you to the witnesses who are attending today.

What happened to Mr. Chen happens all too frequently in Canada, and it has in the past. As a criminal lawyer who practised in northern Alberta for a long period of time, I saw that happen more frequently than most Canadians would expect. Of course the police are there to enforce the law, politicians like us are there to make the laws, and judges are there to interpret the laws. So you have to excuse me for believing that politicians should react to society.

Mr. Chen, how long have you been in business?

[David Chen]

I have been in business for more than 15 years.

[Brian Jean, Conservative, Fort McMurray—Athabasca, AB]

During that 15-year period, as you indicated earlier, thefts were happening at the Lucky Moose frequently. I think you mentioned earlier that it was every day, in fact. Is that correct?