Justice Committee on Feb. 28th, 2012

[The Chair, Conservative, Dave MacKenzie]

I call the meeting to order.

This is the Standing Committee on Justice and Human Rights, meeting number 22. Pursuant to the order of reference of Thursday, December 15, 2011, we are studying Bill C-26, An Act to amend the Criminal Code (citizen's arrest and the defences of property and persons).

This morning we have three groups to appear before us.

Just so that everybody understands the rules of the committee—and not the chair's rules—they are that there is an opening address of ten minutes allowed, per group. I'll let you know when there's one minute left in your total. When we begin the rounds that go back and forth, they're five minutes total for question and answer. If I cut you off, it's not because I'm being mean-spirited; it's just to balance it out for all the committee members.

Mr. Battista and Ms. Dufour, if you wish to have an opening address, please go ahead. Thank you.

[Nicole Dufour, Lawyer and Coordinator, Criminal Law Committee, Barreau du Québec]

Thank you very much.

I am here with Giuseppe Battista, who is chair of the Barreau du Québec's criminal law committee. That committee consists in equal parts of defence lawyers and crown attorneys, as well as a few university professors.

On reading Bill C-26, we note that, to a large extent, it reiterates the content of Bill C-60, which had the same title, and bills C-547 and C-565, which dealt with the same subjects and on which the Barreau has previously commented.

We note that certain expressions in the French version of Bill C-26 are inconsistent with the English version and should be corrected. The words "unlawfully" and "lawfully" in the English version are translated by expressions using the word "légitime", which, in our view, does not necessarily convey the purpose intended by the English version. For example, section 34(3) as proposed by the bill contains the expression "agir de façon légitime". We submit that the phrase "autorisée par la loi" would be more accurate than the word "légitime".

The Barreau du Québec would like to offer its congratulations on the effort to simplify the legislation relating to self-defence, which has been criticized by the courts and by law enforcement bodies. In our opinion, these amendments do not alter the current case law, since the proposed provisions address the conduct and actions of a person who uses force, and not the outcome, for deciding whether the use of force in the circumstances is reasonable and lawful.

However, we believe that the choice to legislate in the negative is not advisable in the circumstances. We submit that it would be preferable to use an affirmative formula that refers to the right to repel force, or the threat of force, by force.

Bill C-26 reiterates the elements of Bill C-60, which provided that an arrest may be made within a reasonable time after the commission of an offence if a person believes on reasonable grounds that it is not feasible in the circumstances for a peace officer to make the arrest. The Barreau du Québec believes that the proposed amendments are potentially dangerous in terms of the safety of the individuals involved in exercising a power of this nature and for the persons who would be subject to it.

In addition, the fact that a citizen's arrest must be made "within a reasonable time" after the commission of the alleged offence leaves the way open for a possible abuse of power. Any arrest includes elements of unforeseeability arising from the use of the force that is needed in order to make an arrest, peaceful though it may be. By definition, an arrest implies the use of force: a person who makes an arrest must physically control the person and restrict their movements and, if necessary, may use reasonable force to compel the person to submit to their authority. When police make an arrest, they are identified by their uniform or otherwise, and persons arrested by police know that the police are entitled to make arrests, even if they believe the police are in error in their case, and police are required to inform the person arrested of the grounds for the arrest and of their rights. The police are trained to make arrests, and even with their training and skills, arrests sometimes go wrong, even where the persons involved are not criminals. A member of the public does not have the training and resources available to police forces. The power of arrest is an important power that must be exercised in accordance with the law, and the rights of a person who is arrested must be respected.

The power to arrest granted to individuals must be an exceptional one and must be subject to strict guidance. We believe that the use of the expression "reasonable time", as proposed in section 492(2), is problematic, in view of the risks associated with a citizen's arrest.

[The Chair, Conservative, Dave MacKenzie]

Ms. Dufour, could you slow down just a little bit? Thank you.

[Nicole Dufour]

There are also grounds to question certain very practical aspects of a citizen's arrest. 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? What would happen in the event of an unlawful arrest? Would the person who made the arrest have civil or criminal immunity?

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) of the 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.

Thank you.

[The Chair, Conservative, Dave MacKenzie]

Did you have anything, Mr. Battista? Thank you.

Mr. Abergel.

[Oliver Abergel, Member, Criminal Lawyers' Association]

Good morning. I'm here on behalf of the Criminal Lawyers' Association. We've been before you before.

We're a non-profit organization, founded on November 1, 1971. The association is comprised of approximately 1,000 criminal defence lawyers, many of whom practise in the province of Ontario, but we have representation from across Canada.

The association has been granted standing to participate in many significant criminal appellate cases as well as other judicial proceedings. We find it both a privilege and a pleasure to be given the opportunity to appear before this committee on this important bill.

I'll start by saying that this bill is very important to all Canadians, as it deals with the basic rights to defend oneself and one's property against unlawful attack. The Criminal Lawyers' Association believes that everyone, regardless of party affiliation or particular role in the justice system, be they crown prosecutors, defence lawyers, judges, or police, can agree that no one should attract criminal liability for legitimately defending oneself from aggression.

The position of the Criminal Lawyer's Association is that the goal of Bill C-26, in particular sections 34 and 35 involving the self-defence provisions, is laudable.

Countless courts, academics, and trial lawyers have commented with dismay at the needless complexity and confusion associated with the present self-defence provisions. Clearly this bill is attempting to respond to those criticisms. However, the bill as drafted is not without some difficulties, from our perspective. I will attempt to outline constructive criticisms while maintaining that the bill does respond to criticisms that have gone on for a number of years.

I have three essential points. Number one is the issue involving what I call “lethal force”. Paragraph 34(2)(b), as it currently stands, makes it clear that an innocent party who has not provoked an assault is justified in causing death or grievous bodily harm if he or she reasonably fears death or grievous bodily harm and reasonably believes that he or she cannot otherwise preserve him or herself from death or grievous bodily harm. The proposed amendments simply create a reasonableness standard, and I say there's not a great difficulty with that for many uses of force.

Proposed subsection 34(2) lists the nature of the force or the threat as one factor to be considered among a list of possible factors. Proposed subsection 34(2) also lists “other” means available as being a factor in such scenarios. That is suggestive potentially of bringing in notions of retreat or possible escape, especially when dealing with someone who is in their own home.

The Criminal Lawyers' Association recommends that there be a clear subsection clarifying that lethal force is proportionate where it is used to repel force or a threat of force capable of causing death and/or grievous bodily harm. We say this because we believe that without this clarification innocent parties will have their actions dissected in 20/20 hindsight, without appreciation of the stress of a self-defence scenario. For example, if you're in your own home, with your family asleep in their beds, and someone breaks into your dwelling and comes after you with a weapon, you should be able to defend yourself using lethal force if necessary. You should not have to explain why you didn't avail yourself of other potential avenues of escape.

Issue number two is the list in proposed subsection 34(2). The Criminal Lawyers' Association agrees with the Canadian Bar Association that proposed subsection 34(2) may result, unintentionally, in being used as a checklist, especially when a judge is applying these criteria. We acknowledge that the proposed subsection clearly says that these are some of the factors and the list is not exhaustive. We understand that.

That being said, the concern is in a practical matter, and the Criminal Lawyers' Association are able to give commentary as practical trial lawyers that, especially in a jury trial, the list of factors is what will be provided to a jury and what the jury will take with them into their deliberations. There is a concern that if another factor comes up that wasn't deemed important enough to list as one of the major factors to be taken into consideration, this may negatively impact the law of self-defence.

It's our submission that the list is simply not necessary, that it leaves out many potential relevant factors, and that all of the enumerated factors are simply examples of either proportionality or of necessity.

My third point is on section 34.(3).

The common law, as it currently stands, is that a person is justified in using force to repel an unlawful arrest. The amendment, as represented in the proposed section 34.(3), injects a subjective belief and creates a potential onus for a person who has resisted an unlawful arrest or an unlawful search to show that they subjectively and reasonably believed that the other person was acting unlawfully.

Again, we agree with the Canadian Bar Association that section 34.(3) is simply not necessary. It's very clear that self-defence is not applied to resisting a lawful arrest, that it's duplicitous and may, by accident, inject the need for an accused to prove his or her subjective belief when defending against unlawful arrest and/or search.

Thank you.

[The Chair, Conservative, Dave MacKenzie]

Thank you very much.

I'm not sure if it's Mr. Chen or Ms. Shi. Whoever wishes to go first, go ahead.

[Chi-Kun Shi, Lawyer, As an Individual]

Good morning, Mr. Chairman and members of the committee. Thank you for inviting me here today.

My name is Chi-Kun Shi. I'm a lawyer.

I spend most of my time practising civil litigation, far away from the criminal courts. However, in 2009, when I learned of David Chen's incident and the serious charges he faced, I felt that his case was one that raised issues not only about public safety, but also about fundamental Canadian values. I became involved in the public discourse.

In that process, I had the opportunity to speak to many store owners. I researched the proper roles of all three levels of government in the matter; debated the issues repeatedly on radio and television talk shows in both the English and Chinese languages; and gave numerous interviews to journalists of all media types, including international, national, and syndicated programs, as well as local college student newspapers.

From these discussions I learned that Canadians see the right to exercise citizen's arrest as intertwined with the fundamental relationship between Canadians and our government.

The proposed amendment to subsection 494(2) of the Criminal Code, before the committee today—that is, clause 3 of Bill C-26—is therefore an exercise in recalibrating that relationship and redefining the role of government in the lives of Canadians. It has fundamental implications.

The proposed amendment eliminates the current unworkable restriction that limits citizens' arrests to the very narrow window when the criminals are in the process of committing the crime.

In David Chen's case, the police relied on the contemporaneous restriction to deny David the availability of the citizen's arrest defence, and thereby flipped the essential elements of an arrest, any arrest, into very serious charges of kidnapping and forcible confinement. These charges were levelled against him as he arrested the shoplifter one hour after the crime was committed.

The proposed amendment before this committee will eliminate this scenario. It allows the store owners to make an arrest within reasonable time. However, it imposes other conditions, including the one that I will respectfully submit may not respond to the reality of life in a grocery store.

The proposed amendment stipulates that the citizen making the arrest must have found the criminal committing the offence in the first place, although the arrest could be made within reasonable time thereafter.

In practice, store owners rely on surveillance videos to determine, often after the fact, that the theft has taken place. As many of the shoplifters are repeat criminals, the store owners or their agents may receive the information of the theft through each other as they are often able to reliably identify these criminals.

Strictly speaking, information of that nature may not be sufficient to authorize a legal citizen's arrest under the proposed amendment, as it requires that whoever makes the arrest must have found the criminal committing the offence. As the consequence of an illegal citizen's arrest is so serious, the question one must ask is whether the amendment should be fashioned to provide the store owners more space between, on the one hand, doing a picture-perfect legal citizen's arrest, and on the other hand, suddenly becoming an alleged kidnapper.

Under the Criminal Code, even with this proposed amendment the stakes are very high for store owners who exercise their right to citizen's arrest. The benefits, on the other hand, are quite limited.

As David's case demonstrates, the Criminal Code, as implemented, imposes much harsher penalties on illegal citizens' arrests than on shoplifting. If we believe that the law encourages certain behaviour and discourages other, one can make the argument that the government's vision realized by our Criminal Code on the issue of shoplifting is one of acquiescence.

On the other hand, the government's vision on citizens' rights to protect their own properties is one of severe caution.

During many debates about what David's and other store owners' proper response to shoplifting should be, opponents of the right to citizen's arrest argued that store owners should call the police and then just wait.

As we all know by empirical data, anecdotal evidence, and indeed as admitted by police themselves, there are not enough resources for the police to confront the issue of property crimes on their own. So what these opponents are really saying to the store owners is simply to suck it up. Store owners who try to do anything else to protect their properties are taking the law into their own hands or committing vigilante justice.

In my view, until they've made a citizen's arrest, the law that day was in no one's hands but the shoplifter's. What the opponents have captured, though, in their view is the equating of citizen's activism with anarchy. To some extent the Criminal Code's harsh treatment of store owners reflect this view. Even these proposed amendments, motivated by the recognition of these store owners' fundamental rights to defend the fruits of their hard work, contain conditions that I submit reflect the government's unease about trusting Canadians to participate in the safeguarding of their communities.

The debate surrounding citizen's arrest is an opportunity to re-examine the role that every Canadian should play in his or her own surroundings and community. In Chinese, the word “democracy” is made up of two characters that mean “citizen” and “decide”: “democracy” means “citizens decide”.

These proposed amendments take a step towards giving Canadians more chances to decide and shape their lives. Perhaps some day the government will see fit to further amend the Criminal Code and trust Canadians with the right to defend themselves, where there are reasonable grounds to do so, without placing strictures that, as in David's case, turn Canadians defending their properties into serious criminals and turn career criminals into star witnesses for the crown.

I will always remember a store owner who told me that after he caught a shoplifter and waited for the police to arrive, he was more scared than the shoplifter of what the police might do. That is wrong. This proposed amendment is a good start to setting things right.

Thank you for your attention.

[The Chair, Conservative, Dave MacKenzie]

Thank you.

Mr. Chen.

[David Chen, Owner, Lucky Moose Food Mart, As an Individual]

Good morning. Thank you for inviting me today.

My name is David Chen. I'm the owner of the Lucky Moose Food Mart.

Almost every day people steal from my store. Calling the police does not stop them. They are gone before the police get there. Sometimes the police don't have time to come.

Two and a half years ago, when I tried to stop a repeat shoplifter, I was told I was wrong. I was told chasing him was wrong, but he ran away when I asked him to pay for what he took. I was told tying him up was wrong, but he was hitting me and my workers. I was told putting him in my van was wrong, but he was kicking us. I was told I might be a bigger criminal than the shoplifter. I was told I was more dangerous than the shoplifter. I was in jail overnight. My wife was not allowed to see me.

I was very lucky that many Canadians supported me. The community raised funds to pay my lawyers. My lawyers worked hard and gave me good discounts, and the court set me free.

Even with so much luck, my family still has a hard time with the system. We spent time and money. We worried that I might go to jail, all because I don't want anyone to steal from me.

I know many people worry about shoplifters and store owners fighting on the street. I want to tell them we store owners don't want to fight; we just want to make a living for our families. When we have no choice, we want the chance to defend ourselves and what we work hard for. When we do, we need the government on our side.

I am just one of many store owners who are victims of crime. I want you to know that Bill C-26 is important to us. It means this government is listening to us and understands that we are victims.

Please continue to keep us in mind when you make laws.

Thank you for letting me speak today.

[The Chair, Conservative, Dave MacKenzie]

Thank you.

Now we begin the rounds. As I said, the rounds are five minutes for questions and answers, so if we end up cutting you off, it's because we've run out of time.

Ms. Chow will begin.

[Olivia Chow, NDP, Trinity—Spadina, ON]

Thank you to the panellists, especially to David Chen for taking a day off work to come to Ottawa and the House of Commons, because I know how hard you work.

It's hard to believe it's two and a half years ago that you had to endure a night in jail and spend an enormous amount of money and time and anguish trying to clear yourself when you were just trying to protect your own property.

The current law basically says that you can do a citizen's arrest if the shoplifters are unsuccessful, if you catch them in the act, but when they are successful—they stole something and took off—you cannot do anything. Is that fair? Is that why you want the law changed?

[David Chen]

We just want to protect ourselves and our property. We're working hard. They still come back and come back. I have to stop that. I just want to try to stop them, to call the police. We are just trying to protect ourselves.

[Olivia Chow, NDP, Trinity—Spadina, ON]

I know you had called the police several times, and often they don't come on time. By the time they come, the shoplifters are long gone. Is that why you felt that after the shoplifter left, having taken things the second time, you had to do something because that had occurred many times before?

[David Chen]

There were so many times before. One day I called police, and I waited for five hours. They didn't come. A few days ago I got lady and she sat on the cash almost three hours, and we couldn't do any business. That's why when I call the police and they don't come, I try to stop them and wait for them.

[Olivia Chow, NDP, Trinity—Spadina, ON]

Can I ask this of Chi-Kun Shi, your lawyer friend?

People say there's a concern that the store owner can go overboard and become too violent under the proposed amendment to the right of citizen's arrest, knowing full well that in the Criminal Code there is already the right to do a citizen's arrest. It's just that you can't do it after the person has stolen the goods. You have to catch the person stealing. Is there any credence to that concern that the store owners will become Rambos?

[Chi-Kun Shi]

I always find it interesting that there is such fear about the store owners aspiring to be, as call you them, Rambos. I have met many of them, and they are nothing like Rambo. They are extremely hard-working people who work crazy hours to provide daily necessities to us. If one wants to be afraid, one should be more afraid of people lining up to get the latest Apple iPod. They are more prone to get violent than these store owners.

The other way to look at it is that this idea of store owners getting violent really comes out of the government's paternalistic approach to governing. The outcome, as we can see in David Chen's case, is a topsy-turvy result where the justice system simply does not bolster people's sense of confidence in our rule of law.

This idea of store owners being Rambo is really a bogeyman born out of an unease about a more activist citizenry that is a partner in public safety rather than dependent on the government for it. I would submit that it is actually healthy if we are going to have a culture shift in Canada where Canadians see themselves to be more active participants and in fact owners of their own community and responsible for its safety. Police can't do it alone. We've all seen that. How can the police show up in time to catch a shoplifter? It's not possible to do unless you put police in every store, and that's not possible either.

At the risk of stereotyping, I really want to point out that if you look at these store owners, most of them are new immigrants. They work so hard. They allow us to go and get milk at midnight, our kids to pick up candy after school, and our parents to pick up a newspaper on the weekends. If anything, they need our unwavering full support.

[The Chair, Conservative, Dave MacKenzie]

Time's up.

Mr. Woodworth.

[Stephen Woodworth, Conservative, Kitchener Centre, ON]

Thank you very much, Mr. Chair.

Thanks as well to the witnesses for being here.

To Ms. Shi and Mr. Chen, I say xie xie, thank you very much for coming here. We always appreciate it when Canadians who are not affiliated with any group but are here simply to make our laws better come to speak to us.

And I don't mean to overlook you either, Mr. Abergel. Thank you as well.

I have some questions for Ms. Dufour that I will have to ask in English because my French is not very good.

I have questions regarding the section of your brief on citizen's arrest, and in particular the extracts from your previous letter, which are found on page four, some of which could be quite misleading if there are those who read them and are not informed about the facts.

In particular, the second-last paragraph on page four refers to Bill C-547, extending the power of arrest so that it can be exercised by citizens who believe on reasonable grounds that an offence has been committed. I would like you to acknowledge publicly here that you are aware that our bill does not extend section 494 in the same manner that Bill C-547 did. You're aware of that, I take it?

[Giuseppe Battista, Lawyer and President, Committee on Criminal Law, Barreau du Québec]

If I may, I think you're correct. We were referring to the previous amendment and the comments we have made, but you are correct. This legislation has dealt with that concern.

[Stephen Woodworth, Conservative, Kitchener Centre, ON]

Correct, and to your satisfaction, I take it?

[Giuseppe Battista]

Yes, that aspect does.

[Stephen Woodworth, Conservative, Kitchener Centre, ON]

The new assessment does not permit citizen's arrest based on reasonable grounds, even, but only finds committed—

[Giuseppe Battista]

Yes.

[Stephen Woodworth, Conservative, Kitchener Centre, ON]

The same comment is made in the final paragraph on page four in relation to Bill C-565. So again, the government legislation does not carry forward that issue from either C-547 or C-565, correct?