Justice Committee on March 1st, 2012

[Stephen Woodworth, Conservative, Kitchener Centre, ON]

That may help you to understand why in this particular case, with the legislation before us, I believe we are providing legislative direction to the police not to lay charges just because there has been a reasonable delay between the time someone is found committing an offence and the time the arrest is made. Do you at least understand how I might see that this legislative direction to police could be useful?

[Leonardo S. Russomanno]

I do, actually. And I do see the language of the legislation as being.... Contrary to the previous remarks, I understand there are other cases as well, but it seems to be directly tailored to Mr. Chen's case.

[Stephen Woodworth, Conservative, Kitchener Centre, ON]

No. As my colleagues have pointed out, there are others across the country who find themselves in similar situations. What we are trying to do is make the system work better for those victims.

I have to say that if it were I who had property stolen, if I were the subject of theft, I wouldn't have any trouble figuring out who the victim was, notwithstanding comments made earlier.

I just wanted to make sure, though, on the record, that nobody in this room would want to say that in Mr. Chen's case the system worked, because at least from where I sit, the system didn't work.

Apart from that, regarding the issue of charter application to citizen’s arrest, I want to make sure I get this right. It's not something, Professor MacDonnell, that applies simply to the amendment we're proposing; it applies to all of the existing law regarding citizen’s arrest. Is that right?

[Prof. Vanessa MacDonnell]

Yes.

[Stephen Woodworth, Conservative, Kitchener Centre, ON]

We're just saying there is an issue out there already, and whatever that issue is, it's going to apply to the amendment also, correct?

[Prof. Vanessa MacDonnell]

The added piece here is that as you expand the powers of private security forces, you expand the potential for the abuse of power. So the concern about the potential lack of regulation of this industry is a concern that is present to a greater degree with the amendments being proposed than it is with the existing legislation. But that's not to say there aren't also concerns about the current level of regulation of private security.

[Stephen Woodworth, Conservative, Kitchener Centre, ON]

I really do get the fact that we are trying to gaze into a crystal ball and predict how this amendment will be implemented. But I'm happy no one has said the law is wrong in principle.

I was a little surprised at one of the members opposite who said that she wouldn't mind waving goodbye to somebody if she saw them a day later, having been robbed. But for myself at least, I'm happy that this is going to give victims that little additional—

[The Chair, Conservative, Dave MacKenzie]

Thank you, Mr. Woodworth. Time's up.

Mr. Cotler.

[Irwin Cotler, Liberal, Mount Royal, QC]

I'm going to take up right where Mr. Woodworth left off, and that is on the issue of the Canadian Charter of Rights and Freedoms. Since the jurisprudence itself seems to be divided on whether the charter does or does not apply to citizen's arrest, what would be your view be with respect to the application of the charter to citizen's arrest?

[Leonardo S. Russomanno]

In other words, should it apply?

[Irwin Cotler, Liberal, Mount Royal, QC]

Yes.

[Leonardo S. Russomanno]

That is such a difficult question. I think in principle I would say that there ought to be obligations, whether they come through the charter or through some sort of parallel provincial legislation or otherwise. I think there certainly has to be some sort of accountability akin to that, which we see with the charter.

The problem, though, as Professor MacDonnell noted, is that especially for your David Chen type of scenario and not your sophisticated security personnel, in practice it may be difficult to implement these obligations, such as the right to counsel or the right to silence. I think there's a fairly solid common law to suggest that citizen arrestors are obligated to provide the reasons for arrest, and that's very similar to what paragraph 10(a) of the Charter of Rights and Freedoms says, but whether or not the panoply of charter rights apply is difficult when you come across the unsophisticated arrestor. I think in principle I agree that there should be accountability akin to that in the charter.

[Irwin Cotler, Liberal, Mount Royal, QC]

This leads me specifically to the question of whether private security guards should be subject to a requirement under either the charter or any other similar legislation that obliges them to inform citizens of their rights prior to arrest.

[Leonardo S. Russomanno]

Yes. I think that should definitely be the case.

[Prof. George Rigakos]

Yes, absolutely.

[Irwin Cotler, Liberal, Mount Royal, QC]

In the time remaining, given that there's been a common theme here with respect to the private security sector, which is something that has concerned me right from the outset with respect to this legislation, and regardless now of your views on Bill C-26, would you have some specific recommendations regarding Bill C-26 and its application to the private security sector, in that there may now be lacunae in the law such that it doesn't address that issue? Do you have any specific recommendations on the assumption that Bill C-26 is going to pass? The question is will it pass with specific reference to private security guards or not? I'm asking if you have any specific recommendations that we might include in Bill C-26 regarding private security guards.

[Prof. George Rigakos]

If Bill C-26 passes, I'm not sure what kinds of constraints you can put on private security, because they are being imagined as private citizens. Then the question becomes what type of private security and in what capacity are you talking about? Are you talking about forensic accounts? Are you talking about investigators? Are you talking about...and under what circumstances? It becomes a very difficult thing.

The problem we have here, I think, is that we've inherited something that is based upon the idea of sort of the frankpledge system and everyone being responsible for their own policing, and the idea of police as a public good, and the notion of the private citizen as being the first defence against criminality and disorder. That's a 19th century notion and in fact actually it's a 14th century notion, if you go far enough back, that has made its way through the common law.

But what's not in the law is any recognition of the distinction between the private citizen and this massive industry called the private security sector. Until that is somehow resolved, until there is some legislative recognition of the important distinction between David Chen and Intelligarde International or some other aggressive parapolicing organization, these issues are going to have to repeatedly come forward.

Either the distinction can be made legislatively or it can be made by the courts down the road. So far the courts haven't made much of a distinction, to my mind.

[Irwin Cotler, Liberal, Mount Royal, QC]

I don't think the courts will make that distinction prior to the legislator giving them some guidance with regard to that distinction. That's my sense. I'm not sure they think in those terms. My sense is that this legislation has the Chen case as its kind of underpinning scenario. What I'm still trying to see is whether, given that the Chen case is kind of the narrative framing of the legislation, there's anything we could do with the legislation, however it was framed by the Chen case, to somehow begin to legislatively address the issue of the security sector and its application or if we need to legislate separately with regard to it.

[Prof. George Rigakos]

Just very quickly, if you just want David Chen to be able to arrest, as the owner, as the proprietor, and you're willing to say that will not include an agent of that individual, you've therefore just excluded the entire private security industry.

[Irwin Cotler, Liberal, Mount Royal, QC]

That's what concerns me.

[Prof. George Rigakos]

So if you want the small shop guy to do that but you don't want the private security industry to do it, then you just make it explicit in the proposed legislation.

[The Chair, Conservative, Dave MacKenzie]

Thank you.

Mr. Jean, very briefly.

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

Yes, I would say that society and our judicial system did work in this particular case. I want to say that because the first thing that happened is that clearly the judge sent a message to police in the Chen case. Parliament, as a result, changed the law. In fact, we heard from Mr. Chen, and I'm not sure if you had an opportunity to hear his testimony, but Mr. Chen said that a daily occurrence of theft before is not happening any more, the result being that criminals are aware that he's going to grab them and arrest them. I think you may not like that, but I, as a person who practised criminal law for a long period of time, do like it, and as a store owner I do like it.

One of the things we can do is prevent people from stealing and send a clear message to them that it's not acceptable. I think that's one of the things it has done.

I would like you to comment in relation to that, since you had the biggest cough on the planet there, Ms. MacDonnell. What do you think about what Mr. Chen said, that now people are not stealing from him?

[Prof. Vanessa MacDonnell]

I don't think I actually have any response to that. Sorry I can't be more helpful.

[Leonardo S. Russomanno]

I don't have an interest in the proliferation of theft. I also share the interest in enforcing law and preventing theft.

I'm not sure that you can necessarily tie the comment that there have been fewer thefts to the message that was sent by the court, and whether or not we can take from it that the police have received a message.