Justice Committee on Feb. 28th, 2012

[Oliver Abergel]

I will answer the honourable member.

You raise an interesting concern, the question being at what point do charter interests become involved, and the courts have wrestled with this. I believe this committee is in possession of an academic paper written by Mr. Russomanno as well as Professor MacDonnell, who I understand will be testifying later on to deal specifically with this issue.

Courts have come to conflicting decisions on this point as to whether security guards or private citizens enforcing the law involving a citizen's arrest create obligations that conform with charter norms. We can say at this point that it's split. If we had to see where the courts were going, it's likely that the Supreme Court of Canada on its previous jurisprudence would rule today that a private citizen did not incur charter obligations when arrested. It's a normative question as to whether they should or not, and it becomes even more complex when dealing with private security firms. There's a real distinction between what we expect from the Mr. Chens of the world or any single citizen who may come across this issue, find a crime in progress and arrest someone, versus what are our expectations of large-scale quasi-police in terms of large security firms. That is certainly a concern the Criminal Lawyers' Association views as something that is an issue.

[Jack Harris, NDP, St. John's East, NL]

This is not new, though. For example, if we're extending to make legal arresting somebody an hour later, as opposed to at the same time, that's not a new concern. It would be a concern under the existing law, I should think.

[Oliver Abergel]

Right, but the concept of the more you remove it from a very narrow fact scenario, where you have a shopkeeper who's arresting somebody immediately found committing a crime and holding them for police, and let's say the courts are probably going to find that does not create charter obligations, the concern from our perspective is that the changes in the law allowing a broader period of arrest.... And I should point out that this law does not restrict itself to honest shopkeepers who are arresting shoplifters; it applies broadly to any offence--a security guard, for example, arresting somebody a few hours later off the property. The concern is that this does not automatically create charter obligations, where from our perspective we believe it should.

The more you get away from the private single citizen, like Mr. Chen, to a more corporatized private security environment, the more the Criminal Lawyers' Association feels that charter obligations ought to be engaged.

[The Chair, Conservative, Dave MacKenzie]

Mr. Battista, just a short one.

[Giuseppe Battista]

I would say it's not a good idea to legislate on the basis of one horrible example that with a little more discretion would have avoided the situation.

I don't know where the one-hour thing comes from. The legislation that's proposed suggests a reasonable delay. Reasonable delay doesn't say one hour. It could be the next day. It could be a week later. The concern is that this will not be used by the little shopkeepers, but will be used generally by agencies. It extends very much the power of agencies acting for the benefit of individuals, and that is a concern to us.

The last point I want to make on this Rambo issue is that the concern we have is not that shopkeepers will turn into Rambos. I don't think anybody seriously believes that. The concern is that if we encourage individuals to engage in this activity, unfortunate events will occur. Already when police are involved in arrests, the events are very delicate and very difficult. We've had in Montreal recently the arrests of people who have mental health issues, and people died—from little meaningless events, which degenerated in the course of an arrest, and that's with police who are trained. That is our concern.

Our concern is that the little shopkeeper will not only be the victim of a theft, but worse, because of that type of event. We're concerned that if we encourage individuals to do this we'll have those risks. That is what our concern is. It's not that individuals who want to protect their little business be charged. It's a terrible thing to do that. The concern here is that with this type of legislation, innocent, good, honest people, who are simply trying to do what they believe is right, will perhaps suffer terrible consequences because the person who's committing the shoplifting may be on drugs, may be out of his or her mind. They may react in a horrible way, where police should be acting. That is the concern.

[The Chair, Conservative, Dave MacKenzie]

Thank you, Mr. Battista.

Mr. Goguen.

[Robert Goguen, Conservative, Moncton—Riverview—Dieppe, NB]

I want to thank the witnesses for attending our meeting and for giving us their views on this important bill.

We have some questions for all of you, but my question is directed to Mrs. Shi.

You spoke about subsection 494.(2), and of course that expands the reasonable time within which it's possible for, in your case, the shopkeeper to make the arrest. It's also premised on the basis of a reasonable and probable ground that the police officer can't make the arrest. I know there are a lot of delays, so there are, generally speaking, some reasonable probable grounds.

I'm wondering if you think the inclusion that the person doing the arresting believe there be reasonable probable grounds that the police cannot make the arrest will ensure that citizens actually in general behave responsibly and in a law-abiding fashion. Does that act as a safeguard, in your mind?

[Chi-Kun Shi]

I think it probably does. The reality is that unless the police station is next door, they could never get there on time. That is simply the reality on the ground. In my view, it would have been sufficient to say that if you make the arrest, you must have reasonable grounds.

I always favour the reasonable grounds language. I know it's not in the proposed amendment. I favour it because it has more flexibility and shows a lot more trust and respect for the citizens whose properties and safety are actually on the line to make that judgment call. It's very easy for all of us sitting in this committee room to say, “Well, what if you get hurt? We really don't want you to get hurt. Why don't you just let him take the plants?” I will submit that this is a slightly paternalistic approach, and at the root of it, it doesn't seem to place enough respect on the people who have the most stakes in this scenario.

[Robert Goguen, Conservative, Moncton—Riverview—Dieppe, NB]

You've fallen on a topic that I think is very key to this: the time to be able to react. Obviously people are in scenarios where they have to make rather quick decisions. They have to assess the danger. They don't know the suspect per se; it's a person who's in their store. I'm wondering if you thought of allowing more time, perhaps, to provide greater safety, not only for those being arrested, but also for shopkeepers. We know that it has to be reasonable grounds to believe the police are not going to attend, but we're not in a police state. It's pretty obvious that in most instances the police cannot attend to a shoplifting incident.

What would your thoughts be on that? Could you share those with us?

[Chi-Kun Shi]

Yes, I think absolutely that if there is more leeway as to the time maybe they'll say “This guy looks like somebody who stole from us, but we want to check our surveillance video.” Usually these shoplifters are repeat offenders, and they will be back, so they'll have this opportunity to do that.

I wanted to comment earlier on the concern about violence. It seems that the undertone is that if there's a potential for violence, let's not do it. I find it very interesting, because we actually, every day, do many things that guarantee violence: hockey, WWE shows. We pay money to watch violence. Crossing the road can get us killed. Driving is very violent and potentially very dangerous, yet we do it every day. It's a balancing act.

On balance, I think Bill C-26 starts to put a bit more value on the store owners' rights, not just to their property, but to their dignity. To be a victim of crime is an indignity.

[Robert Goguen, Conservative, Moncton—Riverview—Dieppe, NB]

This strikes the right balance, in your mind?

[Chi-Kun Shi]

Yes.

[Robert Goguen, Conservative, Moncton—Riverview—Dieppe, NB]

Is there more time?

[The Chair, Conservative, Dave MacKenzie]

Yes, you still have a minute.

[Robert Goguen, Conservative, Moncton—Riverview—Dieppe, NB]

Okay. I will address this to Ms. Shi, but also to the others.

One of the areas discussed in previous testimony was the issue of “finds committing”. This doesn't apply so much to the small shop owner, but more to the mall owners when you have someone who is monitoring from up top, who has an overview of everything that's going on, and sees someone shoplifting and then communicates to another security agent who then makes the arrest. That person obviously hasn't found the person committing the crime; it's information being relayed.

Do you see that as being somewhat troublesome? Do you have any suggestions? I leave this open to all the panel as to how something may be amended to make that more legally binding.

[Chi-Kun Shi]

From my own experience of speaking to people who own businesses, I think what they need from the government is a framework that has flexibility and a bit more trust. In my view, it's better to have flexible legislation and leave it to individual judges. Also, it is better to have legislation that sends a message not only to people making the arrest, but also to provincial governments, provincial attorneys general, and police officers that we support store owners and their fundamental rights. When you deal with them, if there is any incident, you should bear in mind that their right to defend their property is to be respected. I hope that is what Bill C-26 will start to do. It has to be flexible. You can't restrict it to any particular situation. It won't work and it's not fair.

[The Chair, Conservative, Dave MacKenzie]

I'm sorry, you're out of time.

Mr. Jacob.

[Pierre Jacob, NDP, Brome—Missisquoi, QC]

Thank you.

My first question is for the representatives of the Barreau du Québec. I would like to know what the consequences of the problems of the English-to-French translation of paragraph 34(2) of the Criminal Code are. It seems to me the French wording introducing the list of factors is different from that in English. Is it not true that the French term "notamment" could mean "more importantly", "particularly" or "especially", whereas the English expression "among other factors" does not appear to mean the same thing?

[Giuseppe Battista]

I know you have discussed this matter. With all due respect, I believe the word "notamment" is not at all a restrictive term. When the term "notamment" is used in a legal document, it may simply be to cite an example. In case law and under the rules of interpretation, it is not viewed as restrictive, but as introducing an example that may lead to other situations. I believe it should not be interpreted as limiting what is indicated. In that respect, I believe the translation is accurate and correct.

[Pierre Jacob, NDP, Brome—Missisquoi, QC]

Thank you.

[Nicole Dufour]

With your permission, I would like to mention that, in Quebec legislation, increasing use is being made of the expression "entre autres", which we prefer to the word "notamment". When citing a list of elements, one says that something concerns "entre autres" such and such an element. There is nothing inclusive to it.

[Pierre Jacob, NDP, Brome—Missisquoi, QC]

Thank you.

My second question once again is for the representatives of the Barreau du Québec.

Your brief states the following:

The Barreau du Québec is of the opinion that the proposed amendment results in more disadvantages than solutions, and that it would be preferable not to enact it. Section 494(1) Criminal Code should remain as it currently stands. We believe that an approach based on protecting the safety of individuals, including both the offender and victim of theft or property damage who enforces the law, is vastly preferable to an approach that could endanger individuals' safety

You addressed the subject, but I would like you to develop your idea on this point a little further.

[Giuseppe Battista]

When someone arrests a person, the matter sometimes proceeds normally and calmly. In fact, that is what happens in the majority of cases. Hundreds and thousands of people appear for shoplifting, for example, in courts that deal with those kinds of cases, and it all takes place in normal fashion. Sometimes, however, that is not the case.

Our committee is made up of lawyers who practise criminal law on the defence side and crown attorneys. We are somewhat fearful of encouraging citizens to act in this manner, and here I am not talking about the moment when they find themselves in the situation. For example, a person I catch in the act knows that I saw him commit his offence. If I arrest him a day or two later, the fact that that individual committed an offence may be challenged. I am a citizen, not a police officer. I don't wear a uniform and I have not received the required training for that type of intervention. Our fear is that matters will deteriorate in that kind of situation. The problem is not that the merchant may act in bad faith. On the contrary, our concern is that, having been robbed, a merchant should not also be a victim of an assault or some other kind of violence.

We are therefore in favour of an approach whereby police authorities, who are competent in this area, intervene in these cases. When we consider the pros and cons, we weigh that in the balance. We are in favour of the safety of the merchant and the individual. Human life is the priority. However, when there are problems of substance abuse, criminal behaviour or street crimes, if we may put it that way, we very often see that the problem is related to both substance abuse and mental illness. Police officers who have to deal with these types of offences know this and perhaps have told you this in other circumstances. That must be borne in mind. The combination of these two factors is explosive, and sometimes the cause must be addressed, not the effect.

What I am saying does not help Mr. Chen. What happened to him is regrettable; I want to emphasize that. One might have hoped that some well-advised discretion might have been exercised. He should never have been charged, but he was. Fortunately, the judicial system worked and he was also acquitted. In our view, the act in its present form is good. It ensured that Mr. Chen was not convicted, which is positive.

However, we are concerned. The question that Mr. Cotler asked earlier raises the problem. It is not small merchants who should be our main concern, but rather the possibility that we are creating parallel agencies that have police powers without being trained as police officers. Police officers are subject to the control of parliamentarians, elected representatives, in their field of intervention and in their domain, but security agencies—

[The Chair, Conservative, Dave MacKenzie]

Thank you, Mr. Battista. We're out of time.

Mr. Rathgeber.

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

Thank you, Mr. Chair.

Thank you to all of the witnesses here today. I'd especially like to thank Mr. Chen. We hear from lawyers frequently and they're always insightful, but it's very nice to hear from someone like you. I have a couple of questions for you.

You indicated earlier that people steal from your store every day, and I was curious as to whether or not you could place a monetary value, on a monthly or an annual basis, on thefts from your business.