Justice Committee on Feb. 28th, 2012

[Giuseppe Battista]

Yes, you're correct.

[Stephen Woodworth, Conservative, Kitchener Centre, ON]

You can understand why.... Since you began that section of your submissions by saying that there were some comments that were still relevant, I'm concerned that by referring to those items, it's a little misleading for those who aren't aware, and I appreciate your making that clear.

[Giuseppe Battista]

The intent was certainly not to mislead, but simply to reiterate the fact that we had commented in the past. And our comment at this stage of the legislation obviously is not on that point, but you're right to point that out.

[Stephen Woodworth, Conservative, Kitchener Centre, ON]

I'm simply saying that even without intending to mislead, the inclusion of those paragraphs I found misleading for those who were not informed. Thank you for clarifying it.

Then, on page five, at the top, again from this extract, there's a question about Bill C-565—making arrests without warrant less broad than C-547. None of that has to do with the government bill, does it?

[Giuseppe Battista]

No.

[Stephen Woodworth, Conservative, Kitchener Centre, ON]

All right, thank you very much.

On the same page five of your submissions, there are some questions, and I'd like to suggest answers to you and see what you think of them.

What would the arrested person do? Where would they be taken? How would we ensure that the constitutional rights of the person under arrest are respected? I suggest to you that all of those questions would be well satisfied by the fact that we are keeping subsection (3), which requires anyone who is not a peace officer and arrests without warrant to forthwith deliver the person arrested to a peace officer. That answers the question of where they would be taken, right?

[Giuseppe Battista]

Yes and no. I'll explain.

The difficulty we have with this is the following. I just want to take this opportunity to say that I find that what happened to Mr. Chen is a very unfortunate and terrible thing. I don't think he should have ever been charged. But that's another issue.

[Stephen Woodworth, Conservative, Kitchener Centre, ON]

I have to ask you to stick to my question just because I have such limited time. I appreciate your sentiment, however.

[Giuseppe Battista]

The concern we have here is that there is a distinction to be made when an arrest occurs as the act is being committed and when an arrest occurs a reasonable time later on, when citizens are involved.

[Stephen Woodworth, Conservative, Kitchener Centre, ON]

Let me hear about that distinction then.

[Giuseppe Battista]

Yes, that's our distinction.

[The Chair, Conservative, Dave MacKenzie]

Your time is up. Sorry.

Mr. Cotler.

[Irwin Cotler, Liberal, Mount Royal, QC]

Although most of our approaches with regard to citizens' arrests seem to contemplate that this will be done by a private individual, or as in the case of Mr. Chen, a shop owner--and I want to commend you, Mr. Chen, for your actions in this regard, and I regret what you had to endure--I want to raise the issue of where private security guards may be involved in making the arrests and will be doing so in an ongoing way as part of their job.

The question is whether private security guards, who are more likely to be involved in this pattern of arrest, should be treated differently from other private citizens or shop owners in terms of the powers of arrest, and be subject to specific training requirements, certain regulatory requirements, with respect to their powers of arrest. In other words, are we addressing the role of the private security guards as sufficiently as we should, or are we looking at the citizen's arrest in a conventional fashion, largely through the prism of private individuals, shop owners, and the like, and leaving the private security guard unaddressed?

The question is open to anyone who wishes to reply.

That may be a member of the Barreau du Québec or Mr. Abergel.

[Chi-Kun Shi]

Thank you, Mr. Cotler. I have some thoughts about that.

I think the problem demonstrated in David Chen's case wasn't whether people had training, but whether in Canada we believe that Canadians have not only the right but also a role to play in public safety. This legislation, in my respectful submission, ought to focus on entrusting and promoting a sense of ownership in one's right to defend oneself and also on promoting the respect the government should give to ordinary Canadians. They are on the front line. It is their property, and it is a fundamental right that they should have to protect themselves and to be supported by the government in that endeavour.

So I would think that it is not particularly an issue of training, but an issue of attitude. As a society, what do we think everyone's role is in public safety? Are we going to continue to tell Canadians not to do anything? Are we going to take the paternalistic approach and tell them to leave it to the government, when clearly the government--in this case front-line police officers--cannot deal with the issue of rampant shoplifting in Chinatown, or in many stores?

[Irwin Cotler, Liberal, Mount Royal, QC]

I understand, but I'm particularly concerned with the arrest by private security guards. Should they, for example, be subjected to the principles of the charter in terms of the requirement to inform a citizen of their rights with respect to arrest? Do we have a sufficient regulatory regime, or should we have a different regime with regard to private security guards? I'm not talking about private individuals like Mr. Chen. I'm talking about the increasing use of private security guards. Are the same rules and regulations going to apply to them?

I suspect the legislation has been crafted with the idea of the involvement of the Mr. Chens. What about the private security guards? Are we thinking about whether there should be a different approach with regard to them?

[Chi-Kun Shi]

To the extent that private security guards are given any more power to arrest, then they should be subject to more restrictions--for example, the application of the charter. But if the security guards are not being provided with any more training that will elevate them to any special status, then I think they should be looked at more like citizens.

Again, Mr. Cotler, I think the issue is not so much whether it is a private security guard. The problem, as I see it, that Bill C-26 is starting to address is a fundamental issue of whether Canadians are going to be allowed more chances for self-determination and the fundamental right to participate and be an equal partner in the safety of their communities.

[The Chair, Conservative, Dave MacKenzie]

Thank you, Mr. Cotler. Your time is up.

Ms. Findlay.

[Kerry-Lynne Findlay, Conservative, Delta—Richmond East, BC]

Thank you, Mr. Chair.

Thanks to all of you for appearing here today.

In particular, Mr. Chen, I know it's not easy to take a day off work to come here to give us the benefit of what was an unhappy experience for you.

I'm very interested, Ms. Shi, in what you've been saying about an active citizenry partnering in public safety. Also, you've said that this legislation is a good start to setting things right. I appreciate that as well.

But I'm also mindful of Mr. Chen's remarks in saying that “we want the chance to defend ourselves”. In my riding in British Columbia, we have many small stores. Shopkeepers and shop owners there come to me with a lot of worry about constantly being targeted by those who would steal their goods, or who even want to do them harm, because sometimes they have weapons. Other times they don't, but certainly the intent is there to take something away.

I'm interested in having you tell us, Ms. Shi, about how you feel that shopkeepers like Mr. Chen can benefit from this. Will this provide more clarity for them on how they can act and what they can do to defend themselves?

[Chi-Kun Shi]

Thank you.

First of all, to take away that really unreasonable demand the current legislation requires—that they can only catch a shoplifter committing the crime—is a huge break. Because if one thinks about it carefully, that timeframe is infinitesimal. When the thief is in the store taking the goods, the act has not yet been completed, because he has the chance to pay for it at the cash. As soon as he leaves the cash, the act has been completed. I guess that's the infinitesimal moment: when the person is passing the cash. At some point, you can say, “Aha—he wasn't going to pay for it”.

It is totally unrealistic, and it's unevenly enforced as well. If you think about Mr. Cotler talking earlier about security guards, security guards always apprehend outside the store. By that time, the act has been committed. There are actually no rights to that arrest. Yet in that case, the police would never nail a security guard for an illegal arrest.

That's why we need Bill C-26 as a good start: to clarify. It is a break; however, I would submit that it is just a good start. I see in the language, as I say in my submission, such caution; there is such concern that these store owners would go overboard. The problem is that in that equation there is not sufficient attention, in my submission, paid to the concerns of what has been going on in these stores in the meantime, and that is rampant shoplifting.

Mr. Chen's case is such a dramatic demonstration of what happens when the law fails people: the store owners, until this proposed amendment, basically had both hands tied behind their backs and a huge stick over their heads. Dare you do anything.... Just let them take it and go: I've heard that on so many talk shows, with hosts and other people asking why he can't just let them take the plant, asking how it can be worth him having to struggle on the street, and saying that we can't have violence on the street.

My answer to that is that we send soldiers to Afghanistan: what do you think they do there? There are values that we believe are worth fighting for. It's okay to do it overseas, but we can't have a struggle on the street...? We'd rather let people steal from people the things that they work so hard for...? The potted plant, for a middle-class person, may be just something nice to look at on our patio in the summer while we sip our Pinot Grigio, but for Mr. Chen, it's food on the table and education for his children and clothes on their backs.

It is that sense of respect for and recognition of citizens' rights and their participation in the community that I think Bill C-26 has done a good job of starting to address.

[The Chair, Conservative, Dave MacKenzie]

You have a little more time: ten seconds.

[Kerry-Lynne Findlay, Conservative, Delta—Richmond East, BC]

In that ten seconds, I'll say that I like the Chinese definition of democracy, that being that citizens decide.

[Chi-Kun Shi]

Thank you.

[Kerry-Lynne Findlay, Conservative, Delta—Richmond East, BC]

I have a lot of Chinese Canadians in my community as well.

[The Chair, Conservative, Dave MacKenzie]

Thank you, Ms. Findlay.

Mr. Harris.

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

That was a great use of ten seconds, Ms. Findlay.

Thank you all for coming today. I have lots of questions, but unfortunately I only have five minutes. But I do want to touch on two aspects of the citizen's arrest point.

The Barreau du Québec and the Canadian Bar Association have talked about concerns about the lack of training of individual store owners and others who might exercise a citizen's arrest. Of course they have that power now, and it may be that this legislation would encourage a proliferation of that. Do you think there is a need for some effort by the Government of Canada Department of Justice to provide some education about the role of this new law if it passes and to assist in perhaps exercising restraint or knowing when to do this? That's question number one.

Partly following up on Mr. Cotler's question about the Charter of Rights and Freedoms and the role of security guards—and this may be a question for the criminal lawyer people here, not to take away from your legal training—is there a sense that a person, whether it's a security guard or an owner, in exercising a citizen's arrest would be considered a person in authority with respect to confessions, and would that provide some protection?