Justice Committee on March 1st, 2012
A recording is available from Parliament.
On the agenda
The Chair Dave MacKenzie
We will call to order meeting number 23 of the Standing Committee on Justice and Human Rights. We are meeting pursuant to the order of reference of Thursday, December 15, 2011, in regard to Bill C-26, An Act to amend the Criminal Code (citizen's arrest and the defences of property and persons).
Today we have three witnesses appearing before us.
You've probably heard from the clerk that you get a ten-minute opening address. I will let you know when you're down to nine minutes. It's nothing personal, but we'll cut you off at the ten-minute range.
You're free to start, if you wish, Ms. MacDonnell.
Prof. Vanessa MacDonnell Professor, Faculty of Law, University of New Brunswick, As an Individual
My name is Vanessa MacDonnell. I'm a law professor at the University of New Brunswick Faculty of Law. I teach and research in the areas of criminal and constitutional law. This past summer I authored a paper with Mr. Russomanno on the changes being proposed to the power of citizen's arrest by what was then Bill C-60 and is now Bill C-26.
I'd like to touch on four points in my opening statement this morning. I would welcome questions from members of the committee on any of these points or on other aspects of the bill.
First, I'd like to talk about what I'd call temporal concerns with the changes being proposed to the power of citizen's arrest.
The existing law permits an individual to effect an arrest where that individual finds a person committing an offence. The arrest takes place immediately and in most of these cases there's no serious question as to whether the offence has been committed and whether the individual performing the arrest has the right person.
Once you start to stray from this paradigm, though, certain concerns arise: there's a higher possibility of a false arrest; the individual performing the arrest might have the wrong person, the wrong arrestee; and, the person being arrested may have no idea why he or she is being arrested and might resist arrest, either lawfully or otherwise.
These are all circumstances where, in my submission, we would want the police, rather than a private citizen, involved. There's actual police work to be done here. This isn't the kind of case where a thief is caught red-handed, for example, and there may be evidence to seize or an investigation to be conducted. In my view, in this category of cases, we've exceeded what the citizen can meaningfully do. In this respect, the expansion of the powers of citizen's arrest being proposed by Bill C-26 is concerning.
Second, it's important, I think, to highlight that the provisions related to defence of property that are being proposed in this bill are also relevant to our discussion of citizen's arrest. These provisions, like the existing defence-of-property provisions in the code, provide an individual with a defence in circumstances where he or she is defending property. So defence of property, and the self-defence provisions more broadly, provide some protection to an individual who uses force in performing a citizen's arrest.
Included in this broader web of protections are also provisions that protect individuals who use force to prevent the commission of an offence, and protection for individuals who take steps to prevent a breach of the peace. You can read about some of these provisions in the legislative summary for the bill that has been provided by the Library of Parliament.
But the point here is that there's a broad web of provisions that already provide protections to persons who perform citizen arrests. Again I would make the point that situations that fall outside the scope of this broad web of protections likely require the professional expertise of the police.
Third, the major beneficiaries of the expansion of powers being proposed by this bill are not actually small shop owners like Mr. Chen, but rather the private security industry. I'm sure that Professor Rigakos is going to speak more about this in his remarks.
Society is increasingly relying on private security forces as the first line of defence to a number of security threats. These forces are often highly sophisticated. They are well resourced. They police a range of environments and places.
The academic literature and the empirical literature suggest that where marginalized groups are being policed by private security forces, especially in low-income housing communities, there's a real potential for harassment, and the powers being proposed by Bill C-26 may exacerbate this situation. I think we should be very concerned about the liberty and equality concerns that arise when we expand the powers of private security forces, especially if we end up doing so sort of unintentionally.
This bill was really aimed at the David Chen situation and not, perhaps, at expanding the powers of private security forces more broadly. I would simply point out that, unlike police officers, there is very little in the way of regulation of the private security industry.
When we're talking about police officers, of course, their powers are constrained. They have only those powers that are given to them by statute or the powers they have at common law. They're also required to observe the limits of the charter in their duties.
This takes me to my fourth point, and that is the question of whether the charter applies to the actions of an individual performing a citizen's arrest. On this point, I'd just say that the case law, to date, is unclear about whether the charter applies when a person is performing a citizen's arrest. The Supreme Court of Canada has yet to rule definitively on this point. So there's no guarantee the charter would serve as a meaningful check on individuals performing a citizen's arrest.
Perhaps I'll stop there.
The Chair Dave MacKenzie
Leonardo S. Russomanno Criminal Defence Counsel, Webber Schroeder Goldstein Abergel, As an Individual
Good morning. I'd like to start by thanking the committee for having me here.
I see a few familiar faces from previous testimony I've given as a member of the Criminal Lawyers' Association. Today I'm testifying as an individual, out of my own interest as a criminal lawyer, on the issue of citizen's arrest and the proposed expansion of it.
I work in a criminal law firm in Ottawa, Webber Schroeder Goldstein Abergel. I have been a criminal lawyer for almost four years. I have experience in the courts here in Ottawa, and I've appeared at all levels of court. On a regular basis I deal with private security and the contact between private security and members of the public.
Generally speaking, in the vast majority of cases there is an appropriate use of police discretion and crown discretion. I expect that some questions about Mr. Chen's case, in particular, may touch on that topic.
Basically, my position with respect to the proposed change to citizen's arrest is that it is unnecessary. I would adopt the comments of Professor MacDonnell as well as the comments from a previous day's testimony by Kim Pate of the Elizabeth Fry Society and by the Canadian Bar Association. Quite simply, this is a solution in search of a problem.
There are a number of concerns that arose out of the case of Mr. Chen. In my view, there's dissonance between the solutions that are being proposed in the expansion of citizen's arrest and the causes for concern about what happened in Mr. Chen's case.
What originally interested me in this issue was that on the heels of Mr. Chen's case all of the national political parties seemed to come out in favour of expanding the scope of citizen's arrest. One of the main concerns that I read in the news as well as in a transcript of testimony was the unfairness of it all. Mr. Chen had to go through this ordeal simply for trying to protect his property. I think it's something we can all understand quite easily. It has to with liberty, with the hard-working individual who was just trying to protect his property and who ends up getting caught in the criminal justice system.
The concern I heard being repeated by all the political parties was that Mr. Chen was caught up in the system. He had to spend money on hiring a defence lawyer. He had to spend a night in jail. He had to endure the stress of a potential criminal conviction. It was not the best use of crown discretion to proceed in charging Mr. Chen.
At the end of the day, though, Mr. Chen was found not guilty. This result heightened my interest in why we were proposing to expand the scope of citizen's arrest, when, at least in the case of Mr. Chen, the system seemed to have come to the right decision.
With respect to people getting caught up in the system and having to spend money on lawyers and a night in jail to be acquitted, I can tell you as somebody inside the criminal justice system that this is a very routine occurrence. This is something that happens all the time. It may not be beneficial, but I think it's a necessary cost to the system.
What surprises me is the reaction of members of Parliament to the fact that somebody who was acquitted had to endure this. Certainly, I sympathize with that concern. However, as a criminal defence lawyer, my reaction was to wonder why there was not a similar level of concern for my own clients, who are often acquitted after spending a night in jail and have to spend money on a legal team or a defence lawyer.
The cause of Mr. Chen was the impetus for the change in legislation. However, as Professor MacDonnell stated—and I think Professor Rigakos is going to say this as well—the major beneficiary here is the private security industry.
My concern is that there are some negative implications here that are far greater than the benefit to be gained from expanding the scope of citizen's arrest. Some of those concerns have already been outlined by Professor MacDonnell. However, my main concern really has to do with the lack of accountability of private security.
I come at this problem as someone with practical experience, someone who is in the courthouse. I can tell you that I probably won't see many cases like Mr. Chen's, but what I do see on a very regular basis is private security effecting arrests, and I think the same concern should apply here.
Members of Parliament ought to be concerned about the liberty interest of people who come into contact with unaccountable members of private security. It's the same type of concern that occurs with Mr. Chen.
I have had a number of cases of members of the public who have been wrongfully arrested by private security, who have been dealt with in a heavy-handed manner, and who have had the prospect of criminal conviction hanging over their heads for well over a year, until their trial date, only to be acquitted at the end of day and for it to be seen as more or less a pyrrhic victory of sorts. They had to spend money. They might have spent a day or a few weeks in jail before they got out on bail. They went through a humiliating experience with private security, who aren't accountable. And at the end of the day, they're acquitted. That's all well and good from the justice system's point of view, but not necessarily from that individual's point of view.
There's a dissonance here where this committee ought to be concerned about what the effects are going to be on private security. We're giving a lot more power to private security by expanding the scope of citizen's arrest. Those are the cases that you're going to be seeing in the courthouse on a regular basis, far more than cases like Mr. Chen's. So really, it comes from the point of private security.
I would also note that we have the issue of the Trespass to Property Act, or at least that's what it's called in Ontario. There are provincial trespass-to-property acts that are used by private security and can be used by people like David Chen to effect an arrest. What I would have hoped to see more of is a discussion about the interplay between provincial legislation, such as the Trespass to Property Act, and citizen's arrest provisions in the Criminal Code.
I'll leave my comments at that. I look forward to your questions.
The Chair Dave MacKenzie
Prof. George Rigakos Professor, Chair, Department of Law and Legal Studies, Carleton University, As an Individual
Members of the committee, thank you for this opportunity to speak to you today on these proposed amendments to the Criminal Code. I understand I only have a limited amount of time, so I'll make my comments as brief and to the point as possible. That's going to be difficult, given that I'm an academic, but I'll do the best I can.
I appear before you today as an independent scholar and as a member of the Canadian academy who has been studying public and private policing for almost two decades. In the limited time I have, I'm going to focus my attention on the proposed changes to the Criminal Code dealing with a private citizen's power of arrest and, more specifically, paragraph 494(2)(b), which will allow private citizens to make an arrest within a reasonable amount of time after the offence is committed if they believe on reasonable grounds it is not feasible in the circumstances for a peace officer to make the arrest.
I think the changes proposed in Bill C-26 amalgamating a series of awkwardly worded sections relating to defence of property and self-defence make sense and clarify what was already present in the Criminal Code, so I have nothing to add here.
I want to speak to you today about what I consider to be two problematic assumptions that seem to underpin the proposed changes to section 494, and then employ three scenarios to illustrate my reservations about these proposed amendments. I will then sum up with a recommendation.
There are two problematic working assumptions about the proposed changes I'd like to speak to directly. The first is that Bill C-26 is designed to help small store owners like David Chen. The second is that the private security industry is in need of clearer and more expansive arrest provisions in order to do an effective job, and that these proposed changes are in any case simply enshrining legislatively what is already common practice in an increasing challenging security environment. Let me deal with these each in turn.
Bill C-26, in my opinion, will rarely help small store owners like David Chen. Instead, it will almost exclusively benefit the private security industry. With respect to the beneficiaries of these proposed changes, I want to make it clear to the committee that the private security sector will not only be the primary beneficiary of these changes but in practical terms will likely be the only beneficiary. Quite simply, non-security employees rarely, if ever, make arrests. They don't have the know-how. They don't have the confidence.
Unfortunately, there is an absence of available statistics on who makes citizens' arrests, but I would be very surprised, from all of my experience, if even 1% of all such arrests across Canada on an annual basis were attempted by non-security personnel. In fact, to satisfy my own personal curiosity over the years—because I always do a lecture on the division between public and private powers of arrest—I asked my students how many of them had ever conducted a citizen's arrest. These are all policing students in policing classes, so you'd think they'd be a biased sample and more likely than most to do it. Over the last ten years or so, of 500-plus students, only one had made a bona fide citizen's arrest that was not related to their employment in some form. Many of them had made private citizens' arrests, but as agents of the landowner.
Associated with the belief that this bill would aid small store owners, proprietors of businesses, and landowners is the idea that police often charge private citizens if they have not effected an arrest "just right", and that, moreover, these private citizens are subject to considerable judicial scrutiny and will be held to account for a poorly executed arrest. The overwhelming predominance of case law, including that of the David Chen case, as it turns out, points to the opposite reality. The judiciary has bent over backwards to accommodate private citizens' arrests and has, except in the most extreme cases, done everything it can to allow arrests to stand even though they were likely unconstitutional.
Moreover, judges are quite likely to admit evidence collected thereafter, lest not doing so would bring the administration of justice into disrepute. Therefore it's important to keep in mind that these proposed changes should be more accurately understood, for all practical purposes, not as private citizens' powers of arrest but rather as private security officers' powers of arrest. That's my first point.
My second point is the private security industry does not need more expansive arrest powers. As the committee has surely heard by now, private security personnel outnumber the police by at least two to one in Canada, and, depending on how one calculates the numbers, that ratio could be as high as three to one. Criminological research since about the mid-eighties has pointed to the dramatic rise of private security employment across the globe. The trend line for Canada points to a crossover point somewhere between 1968 to 1971 when the private sector was at par with police employment and then began to overtake it.
Since then, not only has the relationship between the public and private sectors transformed quantitatively by virtue of ever-growing demand for private security personnel, but I think it has also transformed qualitatively with respect to what the private security now takes on and how closely interlinked it is with public policing compared to the 1960s. This growth and increasing overlap in function has happened without any significant change to the Criminal Code. Thus, I think the strongest case against any perceived need to expand the arrest provisions in the Criminal Code is precisely the success of the private security sector without them.
The second-strongest case against the perceived need to expand private citizen arrest provisions in the Criminal Code is the increasing and unchecked functional interrelationship between the public and private sectors. When I first started doing research on public and private policing in the early 1990s, you would be hard-pressed to find a single police executive who would publicly endorse closer ties with the private security sector. It seemed that it would bias the police or would undermine their appearance as neutral arbiters of the law. Today these connections are not only endorsed but have also become institutionalized in areas as disparate as public foot patrol, forensic accounting and fraud investigation, and even major event coordination and planning such as the recent G-20 in Toronto.
The Canadian public needs to take stock of these important alterations in private security provision before the Criminal Code is amended to legally enshrine what amounts to a significant expansion of private security guards' powers of arrest.
Let me now turn to a couple of scenarios that will illustrate my concern about what these amendments might mean.
Within the language of the current bill, it's quite likely that there will be many instances when various types of private security personnel, including nightclub bouncers, by the way, will delay arresting someone they find committing a criminal offence in relation to the property they are hired to guard. The reasons for the delay may vary, but they will most likely revolve around some resourcing concerns and the availability and responsiveness of the police. The bill, as it stands, does not stipulate what would be acceptable as a rationale for not arresting immediately, only that the private security guard may arrest at a reasonably later time.
Let's look at the first scenario. A person is wanted by the policy because a warrant has been issued for their arrest. The wanted man then proceeds to steal an item from a mall vendor. A mall security guard, having witnessed the incident and having reported the suspect's image on CCTV, decides to make an arrest at a later, more convenient date. In this scenario, by virtue of bestowing discretionary authority to the private security guard, we may have stunted a police manhunt.
Scenario two: A nightclub bouncer witnesses a criminal act but is unable to make an arrest because the drunken patron has fled the scene. By the way, this is not uncommon, especially in Halifax. Bouncers see the people they have just wrestled with the previous night at the mall the next day. In any case, the nightclub owner prefers his door staff to refrain from making arrests lest they be taken out of service in dealing with the police. The following morning, possibly only half a day after the original incident, the same nightclub bouncer sees the now sober man getting into his car in an underground garage where there is no cellphone reception. Based on the language of the bill, the off-duty bouncer, fearing the man will get away, and that it's not feasible for a peace officer to make an arrest, is within his right to make a citizen's arrest far removed from the original site of the incident and for what may have been a minor summary conviction offence.
Scenario three: A security company, alerted to a spate of recent thefts from a client's warehouse, sets up a sting operation using secret cameras, tagged merchandise, recording devices, and even the screened presence of security agents observing ongoing thefts. None of the company employees recorded stealing materials are arrested immediately. A few weeks later, having gathered all of the video evidence and drafted signed statements from observing guards, the client invites all of the workers to a meeting and conducts a mass arrest. They then alert the police, turn over all of the evidence and a van-load of handcuffed suspects.
My argument to the committee is that all of these scenarios would be legal and not unlikely, given the state of private security innovation and entrepreneurship, and given the language of the proposed amendments for section 494 of the Criminal Code. But note what's happened here. Not only are private security companies acting precisely like public police services, using discretion, conducting investigations, and then turning over evidence to a peace officer on a silver platter, but, by virtue of their ability to delay arrest for a more convenient time, private security guards are always on duty. They are, for all intents and purposes, acting like private police officers. Their authority is tantamount to that of a peace officer once they believe they have witnessed a criminal offence while guarding private property.
BillC-26 therefore will create de facto private police officers, not in name, but in function, as they will use discretion, investigate, and build a case based on their new-found authority to delay arrest. I'm quite confident that this is not the intent of the committee.
It is therefore my recommendation to the committee that the proposed sections of the bill dealing with defence of property be adopted as written, but that proposed amendments to section 494 be dropped, and that for the time being, the original language of this section be retained.
The Chair Dave MacKenzie
Now we begin with members of the committee. Mr. Harris, for five minutes.
Jack Harris St. John's East, NL
Thank you, Chair.
Thank you for most interesting presentations.
If I may start with you, Professor MacDonnell, you mentioned that there was already sufficient or additional assistance to store owners from the protection-of-property section. I don't quite see that in the new section as proposed in the code. I don't see where it would assist in the David Chen situation. I'll let you deal with that, if you might.
I was very interested in the concern expressed by all three of you about the possible effects on private security guards. In my view, this would be an unintended consequence from our party's perspective when we originally put forth private members' proposals designed primarily to avoid the technicality that if somebody.... In the David Chen case, it was basically an hour later.
I didn't hear the police, by the way, apologize for arresting David Chen and charging him. They said they were quite satisfied they had acted within the law and would probably do it again.
I'm sympathetic to what Mr. Russomanno says about people being acquitted of crimes. I practised criminal law in my time, and lots of people do get acquitted and don't get any redress.
How can we protect the David Chen situation, this technicality of there being a delay? A guy shoplifts and comes back half an hour later. I couldn't grab him the first time, but I can get him now. You try to catch him and he evades capture, but comes back the next day because he's that kind of guy. Why can't I grab him then? That seems to me to be what we're trying to deal with here. We don't want to empower private security guards.
I find it quite startling that this would empower private security guards to act in that manner, with delay, to gather evidence instead of arresting someone they actually find committing an offence, to delay and do an investigation. So let me ask you, are those scenarios we just heard about realistic in this wording we have here? If they are, how do we do what we want to do and avoid empowering private security forces in the way that's been suggested? I'm asking you because you're the ranking academic here, with a position as a law professor.
Professor, Faculty of Law, University of New Brunswick, As an Individual
Thank you very much.
I'll start with your first question, which concerned the extent to which the citizen's arrest provisions interact with other provisions in the code that might provide protection to an individual performing a citizen's arrest. What I'll say is that the bill as currently drafted expands the power of citizen's arrest and makes certain changes to the defence of property. My point is simply that when we look at the existing provisions dealing specifically with citizen's arrest and the proposed changes, it's important not to just look at the citizen's arrest provision in a vacuum. It's important to understand how the existing law provides a more robust degree of protection to an individual performing an arrest than what would be suggested if we just looked at the existing citizen's arrest provision in a vacuum.
My suggestion is actually quite similar to that of Professor Rigakos. I don't have any objection to the changes being proposed to the defence of property. So taking that defence along with the amendments being made to self-defence more generally, and taking also those provisions of the code that protect individuals who are acting to prevent the commission of a crime, for example--
Jack Harris St. John's East, NL
Can I interrupt for one second? I hear you in the generalities, but when I look at the provisions here, self-defence says you can eject them from your property or you can try to take back the property. It doesn't say anything about arresting or re-taking the property. That's not what we're talking about here. We're talking about actually holding a person so that the police can come to get them.
Professor, Faculty of Law, University of New Brunswick, As an Individual
Right. These concerns really only materialize if an individual has exceeded his or her authority in performing the arrest, and that individual is subsequently charged with assault, for example. In that case, the defence-of-property and the self-defence provisions, more broadly, are engaged and provide a certain degree of protection. They may not provide the extent of protection being suggested by the proposed changes to the citizen's arrest provision, and my point here is simply that there is more protection than we see in the citizen's arrest provision alone. When we start to stray from the paradigm of the thief being caught red-handed, and we're talking about arrest taking place some time after the alleged events have taken place, then we're straying into territory where we should really be relying on the police and not on the David Chens of the world and the private security guards of the world.
My point was simply that we should examine as a whole the protection that the code already provides to individuals who make these types of arrests, and I think what we'd find is that the protection is actually quite robust. What's interesting about—
The Chair Dave MacKenzie
I'll have to interrupt you there. We're quite a bit over.
Robert Goguen Moncton—Riverview—Dieppe, NB
Thanks to all the witnesses for attending. It's very helpful to get your testimony and to hear your thoughts on what could be a somewhat complicated act.
Just to take up Professor MacDonnell, in a perfect world the police would obviously be the people assisting and conducting all the arrests, and there's always the prospect of false arrest. First and foremost, based on the act, it's understood that the arrest can only be made in circumstances where it cannot reasonably be done by the police, so they remain the first line of defence against crime.
What we've gotten in testimony from storekeepers, some of the police authorities, and even people who provide private security is that it's not practical for the police to respond to shoplifting or intoxication offences. It's not so much that it's the people in the far north who the police can't respond to, because even in urban situations the police cannot respond quickly to situations of shoplifting. A lot of the act is drafted, in essence, based on practicalities.
What we've also heard is that a lot of the ground rules, particularly with regard to the defence of property, were very, very convoluted. You have scenarios where the police aren't sure what the ground rules are, the citizens aren't sure what the ground rules are, so we throw it to the court to decide, and there is a lovely docket crowded.
I'm wondering—and I'll throw it out to all of you—although you may have some reservations, would you agree that the way this act is framed is an attempt to set the ground rules more clearly so that the parties involved in making the decision to either make the arrest or to prosecute have some sense of where we're going as to what's reasonable and what isn't? Is there some clarity there? We know about the jury charges being so convoluted and difficult that there's the appeal again.
Any thoughts on that from any one of the three of you?
Professor, Faculty of Law, University of New Brunswick, As an Individual
I'd just say very briefly, dealing just with the powers of citizen's arrest, that I think the difficulty with the proposed changes is that a citizen might be unaware of the extent of his or her authority to perform these kinds of arrests because there's a presumption that citizens know the law, but we know realistically that they don't always understand the nuances of the contours of this authority. I suspect the same issue may well arise with the proposed amendments. Again, you're always dealing with some form of line-drawing exercise, and I think the concern exists, and the thing I would just add is that I think you're quite right in suggesting that what's being proposed here is an attempt to come up with a practical solution.
On this practicality point, it's important to realize what the practical implications are as well in terms of empowering very sophisticated law enforcement personnel who are these private security guards. I guess my view is that we know that in the Chen case the system worked. He was acquitted, even in the face of what was really a fairly aggressive arrest and holding of a suspect. So we know the system worked there. We look at the implications of these changes and I think that, on balance, maybe things are better left as is.
Criminal Defence Counsel, Webber Schroeder Goldstein Abergel, As an Individual
Perhaps I could just jump in here.
Speaking to the self-defence provisions in the defence of property, I think it's certainly a laudable goal in mind to simplify the sections. This is something that courts and experts have been calling for, for a long time, and I think it will go a long way to simplifying the jury charge and the law of self-defence in general.
I do have some concerns about what was previously subsection 34(2) of the Criminal Code with respect to the use of deadly force. In the previous iteration of the defence, deadly force can be used if one perceives grievous bodily harm or death and feels there's no other reasonable way to get out of it. The subsection that was added in the new legislation suggests the possibility of a proportionality requirement in such cases. It doesn't seem quite clear, but there is a concern there, because I think as a general proposition, the way the law stood before, if you're faced with a threat of grievous bodily harm or death and you don't have any other way, you can use deadly force. I don't know that it was the intention of the drafters to actually make that defence less robust. That's the only comment I would have with respect to that.
I would echo the comments of Professor MacDonnell with respect to the case of David Chen and the system working. I think it's consistent with what Professor Rigakos said as well, about courts more or less being quite flexible with the application of citizen's arrest in justifying the use of that arrest power.
With respect to the reasonable time requirement, I think it's going to take some time for courts to figure out what that means, exactly. What does “within a reasonable time after” mean? If you had this scenario play out where the arrest took place a day later, I don't know that a police officer would happen upon that situation and say, “All right, that's a reasonable time afterwards, so I'm not going to charge this person with forcible confinement and assault.”
I think you're still going to end up, in my opinion, with the scenario of people being brought through the court system, and at the end of the day, they might be acquitted; the court might end up saying, “Okay, this was a reasonable time afterwards, in the circumstances.” I think it's worth mentioning.