Justice Committee on March 1st, 2012

[Prof. Vanessa MacDonnell]

Again, I see where you're taking me. My difficulty is.... Let me use one example. There's a real concern that exists in the criminal justice system about the veracity of eyewitness identification. There's this phenomenon of the honest witness who mistakenly identifies someone, who believes it honestly and is a concerned citizen. The courts have been very plain in saying that eyewitness identification is in many cases entitled to no weight because it's very problematic.

It's difficult to separate out this paradigmatic situation from what we know about the way these things go. If you're in a position where your concern is that 85% of the time things might go wrong either for the arrestee or the arrestor, and you know that the existing provisions will cover many situations where those concerns are attenuated, I think the logical conclusion for someone like me is to say let's keep things the way they are.

[Stephen Woodworth, Conservative, Kitchener Centre, ON]

Understood.

Unfortunately, because of time limitations I'm going to have to pass over Mr. Russomanno and Mr. Rigakos. I'd like to continue this conversation with you for just a moment longer.

In principle I am quite confident that the court system can in fact redress imperfect implementation of good laws. I'm quite willing to allow the courts to do that. For me, the question of whether it's a good law depends on onus too. Who am I trying to serve? Who am I trying to protect?

If someone knocked me over the head and stole my watch and I saw them the next day and I had to wave at them and watch them walk away when there was no police officer around, to me, the protection of such a person is sound in principle. I will give the onus to protecting victims, rather than the onus of preserving against the possibility of an abusive exercise of a good law. So—

[The Chair, Conservative, Dave MacKenzie]

Unfortunately, Mr. Woodworth, your clock is done. The watch says that five minutes is up.

Madame Boivin.

[Françoise Boivin, NDP, Gatineau, QC]

Thank you, Mr. Chair.

I would like to thank the witnesses. This is a very interesting topic.

I would like to thank Mr. Woodworth for the example he gave us. That really gets you thinking. But it is also an example that perhaps shows that we are opening a can of worms, as the saying goes.

But I want to make sure I have understood you correctly. Am I to understand from your remarks that it would be better to leave the Criminal Code as it is right now and that the case law is sufficient? Cases like that of Mr. Chen certainly occur. But we are likely to sort of complicate our lives if we try to handle a particular case. Have I understood correctly? Is that basically what you are saying?

[Prof. Vanessa MacDonnell]

Yes, you have understood correctly.

[Françoise Boivin, NDP, Gatineau, QC]

What do you think about that, Mr. Russomanno?

[Leonardo S. Russomanno]

I'll answer in English. I can understand French, but my spoken French isn't very good.

Yes, I would agree that it should remain as it is with respect to the citizen's arrest.

I don't have very many issues with respect to the defence of property and self-defence, subject to the comments I made earlier. I think that those, as suggested by Professor MacDonnell, would go some way in addressing the concerns that underlie the desire to expand citizen's arrest.

[Françoise Boivin, NDP, Gatineau, QC]

Professor Rigakos, did I understand correctly that basically your testimony to the committee on the citizen's arrest is to leave the Criminal Code as is?

[Prof. George Rigakos]

Yes.

[Françoise Boivin, NDP, Gatineau, QC]

Okay, that's clear.

You said something important. Since the beginning, I have been worrying about the citizen’s arrest. That has to do with the security of the person. I would not recommend a citizen's arrest. People don’t have the training or the skills required for it. It can be dangerous. But if a person still feels it is their duty to do so, it has to be done properly to avoid any problems. You have to be sure that you are arresting the right person. That is something to consider.

I understand your position. You would like to keep the Criminal Code as is. However, since we are a minority in Parliament, I don’t have much hope that we will be able to achieve that. I think the government wants to make amendments to the Criminal Code.

I am a bit concerned when I hear you talk about a reasonable period of time. That only adds to my concerns. I am told that, in some cases, that could mean a number of days. The Criminal Code has to specify what a reasonable time is if someone is arrested after an offence was committed. In my view, it clearly means a few hours after the fact. But people infer that it could be the next day. I almost made peace with the idea that it could happen over the next several hours, if the same person was stupid enough to go back to the same store. Mr. Woodworth's example heightened my fears and I thank him for that, because I was almost ready to support the clause as written. It sometimes helps to hear from witnesses. I understand that it could be the next day or the day after when memory may no longer serve properly.

How can we reconcile all that and make the clause more consistent so that the situation is less worrisome than the one Mr. Chen has experienced?

[Leonardo S. Russomanno]

In short, if you have that sort of reasonableness requirement you are leaving it to the common law to figure it out, and the courts are going to have to figure it out. It's not the first time that such language has been used and the common law has been left to figure it out. There is uncertainty to start with. Most of us have faith in the common law to come up with the right answer in certain circumstances, and the beauty of the common law is that, on a case-by-case basis, it goes through this.

I find it hard to resist the urge to answer the previous hypothetical question. I think it's tied into this. Certainly in principle it is reasonable. However, I think that the hypothetical problems with mistaken identification and lack of accountability are inseparable from that question, which in principle I fully agree with. There should be a corresponding right. The problem is the lack of accountability that flows from that, the uncertainty in the language, and the possibility that a citizen's arrest is going to be met with violent resistance, where the arrester is not properly trained to carry out such an arrest.

[The Chair, Conservative, Dave MacKenzie]

Mr. Jean.

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

I always enjoy academic discussions, but I'd like to take this back to a more practical reality. I would like to talk about practicality. I grew up in Fort McMurray, which, when I moved there, had about 1,400 people. Today there are about 100,000 people. I practised criminal law. My parents had a store on the main street and I undertook about ten arrests of citizens. In one case I got assaulted by a couple of guys I chased after, so I understand what it's like to be involved in that kind of thing. I have had thousands of court appearances as a lawyer in hundreds of criminal trials. It's a very busy place.

I'm going to start with you, Ms. MacDonnell. Are you from eastern Canada?

[Prof. Vanessa MacDonnell]

I am indeed.

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

There are a lot of people in Fort McMurray with that last name.

In how many criminal trials have you been the senior counsel on?

[Prof. Vanessa MacDonnell]

None.

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

How many of you have been a senior counsel in trials where you used the defence of self-defence?

[Leonardo S. Russomanno]

Self-defence...?

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

Senior counsel, I'm talking about.

[Leonardo S. Russomanno]

I'd say about a dozen. I should mention that I am not an academic.

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

I understand you're not, but you've four years at the bar.

[Leonardo S. Russomanno]

Yes, that's right.

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

Mr. Rigakos?

[Prof. George Rigakos]

I'm a medical lawyer.

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

I have seen what might be called an imperfect system of academics when I was doing my bachelor's of law and my MBA. I had just about finished my master's of law when I went to practise criminal law. In this capacity, I saw one thing that helped the situation of academics—the judges. They were able to interpret in just about every case the issue of reasonableness or the reasonable demand test.

The one thing that's been left out of this discussion, if I may say—and I see you nodding with me, Ms. MacDonnell—is the civil law remedy for security forces and the civil law remedy for wrongful arrest. I had the opportunity of practising in both areas of law, and I can assure you that anybody who made a wrongful arrest felt the consequences in his pocketbook. This is why the security officials train their people so well.

Can you comment on that, Ms. MacDonnell?