Thank you.
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.