Evidence of meeting #23 for Justice and Human Rights in the 41st Parliament, 1st session. (The original version is on Parliament’s site, as are the minutes.) The winning word was arrest.
A recording is available from Parliament.
Criminal Defence Counsel, Webber Schroeder Goldstein Abergel, As an Individual
I could certainly agree in principle with providing clarity to citizens in effecting these arrests.
I would agree with Professor MacDonnell about the uncertainty caused by the reasonableness requirement and what is feasible in the circumstances. You raised the example of rural communities versus urban communities, and that may differ.
Conservative
Brent Rathgeber Conservative Edmonton—St. Albert, AB
Before I get to Professor Rigakos, you appreciate that it's impossible for Parliament to pigeonhole a scenario or a situation. These scenarios are so different. We a case where Mr. Chen was in a convenience store in downtown Toronto, versus farmers in rural Alberta where a police officer is two hours away. These are very different situations. What's reasonable in one situation might be very different from what's reasonable in a second situation. That's why I think the bill uses the words it does.
I'll let Professor Rigakos comment.
Professor, Chair, Department of Law and Legal Studies, Carleton University, As an Individual
Haven't the courts already started loosening what “finds committing” means, even by virtue of the David Chen case and previous cases, and won't they continue to do so? Haven't they already done so with respect to “finds committing” for peace officers when common law has said—and then it eventually becomes enshrined—that it's “apparently finds committing”, and you don't have to have a clear line of sight?
Judges have been doing this all along, and I wonder what this adds to that. This is my major fear here, that in the interim, by the time it's figured out....
And I understand how the private security sector works, in the sense that I've been doing research on it for 20 years. There is a wide gamut of actors in there, people I am quite suspicious of, and then others who have been working in the public policing sector and have moved on and done quite elaborate things. There are so many different actors that for a period of time until some of these go through courts, you're going to have a bit of a cowboy culture out there. That's fairly guaranteed.
So I'm wondering about the harm that will happen in the interim.
Conservative
Brent Rathgeber Conservative Edmonton—St. Albert, AB
I suspect we're out of time, but the cases I cited, two from Alberta and one from New Brunswick, do not involve private security. They involved property owners.
Is that the end of my time?
NDP
Charmaine Borg NDP Terrebonne—Blainville, QC
Thank you.
My first question is for Ms. MacDonnell or Mr. Russomanno.
The issue with the Charter is a bit fuzzy; at least it seems so based on your answer to my colleague Mr. Jacob. But I know that some cases in Alberta have shown that security guards and citizens who make arrests are subject to the Charter. Could you tell us why you are hesitating? Could you perhaps tell us about one or several specific cases?
Criminal Defence Counsel, Webber Schroeder Goldstein Abergel, As an Individual
Sure.
The Alberta Court of Appeal, in a case called Lerke, a 1986 judgment, determined that the charter in fact did apply to citizen's arrest. The basis for that conclusion was really an historical analysis that was done on the power of citizen's arrest, that in fact the power of citizen's arrest pre-dates the police arrest power. There was a time when we didn't have a police force and we relied on citizens to effect arrest and this arrest power was derived directly from the sovereign. So this power that was granted by the sovereign was subject to the charter on that basis, that it came directly from the sovereign.
There's a tendency to think that the citizen's arrest power actually came after the police arrest power, and that's not the case. The Alberta Court of Appeal ruled early on that citizen's arrest was subject to the charter. Other courts, including Ontario, I think Nova Scotia, and British Columbia have held otherwise.
The Supreme Court has not ruled on this issue.
Professor, Faculty of Law, University of New Brunswick, As an Individual
I would just add that the Supreme Court hasn't ruled on this issue, but what complicates the question here is that in a case called Buhay, the court seemed to insist that for charter purposes it was going to treat private security guards as private, except in a very limited number of circumstances. Then, in a subsequent case that came a short time after, called Asante-Mensah, the Supreme Court adopted this historical analysis that we see in Lerke about the origins of the power of citizen's arrest and suggested that the issue of the applicability of the charter hadn't been resolved.
From the standpoint of the existing law, it's just not clear how the Supreme Court would rule on this question. Certainly when you're dealing with your sort of archetypal private citizen you can see how there could be some fairly significant implementational difficulties in terms of imposing an obligation on the private citizen to provide a right to counsel and to observe all the dictates of the charter.
That's not a legal argument for finding that the charter doesn't apply, but it might mean that in the absence or until the Supreme Court decides this question definitively it might be more productive to look at how we can regulate the more sophisticated actors in the system, and those are the private security companies. We know we can actually target them specifically because they're already regulated, so we can make that regulation more robust in a way that sort of hives off this group from the private citizen.
The court might ultimately conclude that the charter applies to all of these actors and we'll just have to wait to see.
NDP
Charmaine Borg NDP Terrebonne—Blainville, QC
Thank you.
Ms. MacDonnell, you said that security guards are more likely to discriminate. If we allow a citizen to arrest someone a week after the crime and the citizen sees someone who looks like a criminal, who looks like the person or who looks like a street gang member, do you think we are opening the door to generalizations and potential profiling?
Professor, Faculty of Law, University of New Brunswick, As an Individual
Thank you very much.
Yes, I think the literature suggests that when we're dealing with police officers, marginalized groups such as visible minorities and individuals who find themselves in a low socio-economic category tend to be over-policed. That's the way we refer to it.
I think the same concerns might well exist when we're talking about private security forces. We know that these private security guards are, for example, being used now in low-income-housing communities. I think there is a real risk that individuals who are already likely to have a disproportionate interaction with police officers are now going to find themselves becoming disproportionately also...I won't say targeted, necessarily, but they will find themselves in a disproportionate number of interactions with private security guards. So I think there are all sorts of reasons why we should be concerned about the implications of these changes for marginalized communities.
I'll just pick up on a point that was made earlier about the protection of victims. I'm very much in support of the protection of victims. The difficulty here is that sometimes it's hard to know who the victim is, right? If a person is subjected to increased attention because he or she is a member of a marginalized group, that person is also a victim, right?
The trouble with these cases is that unless you get a case that comes to court, in all of these circumstances where people are being stereotyped or subjected to a disproportionate amount of attention, these people just have to live with it, right? There is no redress because these cases often don't get to court.
I think there are real concerns that exist from the standpoint of marginalized groups.
Conservative
David Wilks Conservative Kootenay—Columbia, BC
Thank you, Chair.
It always gives me great pleasure to sit among so many lawyers, being a retired member of the RCMP.
Part of what I look at from a police perspective, as my colleague Mr. Rathgeber has said, is that there's a complete difference between rural policing and urban policing, and I think everyone in this room will recognize that. Most of the time—and I would strongly suggest this in the case of Mr. Chen—in urban policing, police prioritize what they will attend and what they will not attend because the time consumption of going after every shoplifter is not feasible.
On the other hand, as my colleague said, in rural policing—which is where most of my background was—quite often it can take two or three hours just to drive to a location. For argument's sake, when I was stationed in New Aiyansh, British Columbia, getting to Greenville took six hours. There comes a point in time, too, that if an offence occurs in a rural area, you're going to put a citizen in a position they may not want to be in, but they need to go there because it's to prevent the commission of a crime reoccurring, as opposed to having occurred.
So I think this bill coming forward is actually a good thing from the perspective of getting clarity—if nothing else, giving clarity—and that's where I look at it from. The police know how far they can go. The police sometimes will abuse their power; I'll be the first to admit that. For private security companies, what they don't know, shall I say, as opposed to what they do know, puts them in a lot more harm from time to time.
My question is for all you, on reasonable time for a private citizen to make an arrest, starting with Mr. Rigakos and moving onward. We can all agree that at some point in time a person would go to the police and make that complaint. But if they were forced to make a decision on an arrest, what is a reasonable period of time? The courts have already determined that for Chan—because he was acquitted—it would be about one or two hours. I believe that was the answer with Chan. So we've already gone to two hours. From all three of you, what is a reasonable period of time?
Professor, Chair, Department of Law and Legal Studies, Carleton University, As an Individual
I would add that it's not only the time, but also where.
My concern would be that if you want to eliminate the scenarios that I think are quite possible and probable, given the entrepreneurial nature of the private security industry and how they want to differentiate themselves from other competitors as to who is more aggressive, more cutting edge, and so forth, you might be put in the uncomfortable position of at least thinking about the fact that the subsequent arrest has to take place on or in relation to the property on which the person was actually first caught doing it.
Second, in my experience, if it starts to go beyond a day, I think you'd agree that you're talking about the private security people delaying for the purpose of conducting investigations.
So I would say one day, and again it has to be somewhere around the property.
I don't think that satisfies your colleague, but it makes me as a citizen feel a little more secure in knowing that there are constraints around this.
Criminal Defence Counsel, Webber Schroeder Goldstein Abergel, As an Individual
It's hard to say. I have a hard time disagreeing with Professor Rigakos about the one-day limit. I obviously would grow more cautious as the time became expanded.
I would note that in David Chen's case, he was acquitted on the basis of the original legislation, so the one- to two-hour period really was of no consequence in terms of a reasonable time afterwards. The court concluded that it was a continuing offence, and therefore Mr. Chen fit within the existing contours of citizen's arrest: that this thief was coming back to commit another theft, and so it was one continuous act of theft.
Conservative
Criminal Defence Counsel, Webber Schroeder Goldstein Abergel, As an Individual
I doubt that.
Professor, Faculty of Law, University of New Brunswick, As an Individual
I'm not sure I have much to add to what my two colleagues have said, but I would like to say something about some of the realities of rural policing. I think this is a huge issue for citizens who live in rural areas and who have a reasonable desire to be safe.
My concern is that in expanding the powers of citizen's arrest and relying on those powers so that individuals can protect themselves, in some ways we're getting away, maybe, from the real issue, which is whether we should have more police officers. Is it reasonable, if you're—?
Conservative
David Wilks Conservative Kootenay—Columbia, BC
If I may interject, the fact is that this is a discussion for another day, because it is the burden of a city, town, or nation to determine how many police officers they can afford, let alone anything else.
My question is what is a time limit?
Conservative
Robert Goguen Conservative Moncton—Riverview—Dieppe, NB
What I'm gathering from the testimony is that people seem quite happy with the disposition of the Chen case. Are you satisfied with how that was decided? Is that what I'm getting?
Professor, Faculty of Law, University of New Brunswick, As an Individual
I should say that as far as I'm concerned, the Chen case is maybe a more extreme circumstance than one would expect to deal with in the context of a typical, true citizen's arrest, in that we were dealing with a situation where the arrestee was hog-tied and put in a van. We're dealing with a fairly robust exercise of this power.
I think this goes to Professor Rigakos' point that courts have in fact bent over backwards to acquit individuals in these circumstances. It's probably an indication that the existing provisions provide sufficient protection to individuals in these cases.
Criminal Defence Counsel, Webber Schroeder Goldstein Abergel, As an Individual
I would have to say that I was very torn when I read Justice Khawly's decision in R. v. Chen.
On the one hand, I think the reason that all of the political parties seem to have taken hold of this case and sympathized with Mr. Chen...that resonates with me, because I think the story of a shop owner who is trying to protect his store is something that resonates. There is an unfairness issue, when you're trying to protect your property and the police arrive and end up charging you with much more serious offences than the thief was charged with.
On the other hand, I share the concerns of Professor MacDonnell. We have somebody who really exercised some fairly robust powers of citizen's arrest. While I think it's important that people be able to protect their property, what we have to keep in mind is that we're talking about the offence of shoplifting.
The president of the Canadian Police Association testified, I think back on February 9, at this committee and suggested something similar: that really we have to keep this in perspective, that we're talking about these property offences. When you're increasing the powers of citizens to effect such arrests, you have to keep that in mind. The president of the Canadian Police Association went on to say that we have to be careful that they may not be mere shoplifters; they may have gang affiliations and may be far more dangerous than you think. But I think the underlying sentiment there is a correct one.
