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.

On the agenda

MPs speaking

Also speaking

Vanessa MacDonnell  Professor, Faculty of Law, University of New Brunswick, As an Individual
Leonardo S. Russomanno  Criminal Defence Counsel, Webber Schroeder Goldstein Abergel, As an Individual
George Rigakos  Professor, Chair, Department of Law and Legal Studies, Carleton University, As an Individual

11:55 a.m.

Professor, Faculty of Law, University of New Brunswick, As an Individual

Prof. Vanessa MacDonnell

Yes, I'm happy to respond to your questions. I also have a great deal of faith in judges. I guess one of my concerns would involve all the cases that don't get to court, and all of the circumstances where either there's no criminal charge, or there's no civil action brought because you're maybe dealing with a marginalized individual who doesn't have the money to bring an action against a private security company.

11:55 a.m.

Conservative

Brian Jean Conservative Fort McMurray—Athabasca, AB

I agree 100%. That's why we have contingency agreements, and that's what I practised as well. I was able to sue people on the basis of the percentage that I would receive, based upon the success, and I did a lot of that.

But the case I would like to bring up—and you're exactly right—is that there are not a lot of people who get the opportunity to have what Mr. Chen had. A lot of people are arrested in circumstances like that, or have been in the past. I've seen a lot of Mr. Chens across the country, and they don't have the ability to get redress or to get the publicity that Mr. Chen had, so they're arrested or thrown in overnight.

As Mr. Russomanno said, his clients who have been thrown in jail have had no redress, have had no publicity. There's been no sympathy towards them as a result of being wrongfully arrested in circumstances where they were defending their property or themselves. That's my issue.

11:55 a.m.

Professor, Faculty of Law, University of New Brunswick, As an Individual

11:55 a.m.

Conservative

Brian Jean Conservative Fort McMurray—Athabasca, AB

That's exactly my issue. They don't have the time to do that.

11:55 a.m.

Professor, Faculty of Law, University of New Brunswick, As an Individual

Prof. Vanessa MacDonnell

Again, what's so interesting about the Chen case providing the impetus for this law reform is the fact that Mr. Chen was acquitted. Actually, this goes to the member's point--

Noon

Conservative

Brian Jean Conservative Fort McMurray—Athabasca, AB

But he spent a night in jail, which is not very comfortable at all. He was arrested and manhandled. Just to be honest, I know lots of clients who have been in circumstances like that and, as Mr. Russomanno said, they are not pleasant scenarios. It's not like the Holiday Inn.

I do want to ask a couple more questions, if I may.

Noon

Professor, Faculty of Law, University of New Brunswick, As an Individual

Noon

Conservative

Brian Jean Conservative Fort McMurray—Athabasca, AB

I think the law is to reflect society's needs. Would you agree with that? The law changes. That's why we have common law and why it's so effective. It's to reflect what society needs. Would you agree with that?

Noon

Professor, Faculty of Law, University of New Brunswick, As an Individual

Prof. Vanessa MacDonnell

I don't see any reason why I wouldn't.

Noon

Conservative

Brian Jean Conservative Fort McMurray—Athabasca, AB

Okay. Indeed, for 50 years at least we've heard people say that the section on self-defence needs changes. You're nodding your head, Ms. MacDonnell. It's not picked up by the microphone, but you're agreeing with me.

Noon

Professor, Faculty of Law, University of New Brunswick, As an Individual

Prof. Vanessa MacDonnell

I think it's laudable that Parliament has decided to address what is at present a fairly technical series of provisions dealing specifically with self-defence.

Noon

Conservative

Brian Jean Conservative Fort McMurray—Athabasca, AB

Exactly. I would hope it would go further, and I'm sure Mr. Russomanno agrees. Grievous bodily harm, whether you can consent to that or not, has been a big issue in relation to criminal lawyers across the country for many years as well.

I just want to say, I think the law has—

Noon

Conservative

The Chair Conservative Dave MacKenzie

Your time is up, Mr. Jean.

Noon

Conservative

Brian Jean Conservative Fort McMurray—Athabasca, AB

—changed in relation to legislating on particular items all through our history.

Noon

Conservative

The Chair Conservative Dave MacKenzie

Mr. Jacob.

March 1st, 2012 / noon

NDP

Pierre Jacob NDP Brome—Missisquoi, QC

Thank you.

My question is for the first witness, Ms. MacDonnell.

Like the other witnesses, you mentioned that the private security industry is increasingly replacing police officers in terms of making arrests for shoplifting or other offences. Do you think that private security guards should be subject to the obligations under the Charter that require them to inform people of their rights, including the right to counsel, upon arrest.

Noon

Professor, Faculty of Law, University of New Brunswick, As an Individual

Prof. Vanessa MacDonnell

It would be easier for me to answer in English, if you don’t mind.

Noon

NDP

Pierre Jacob NDP Brome—Missisquoi, QC

No problem, go ahead.

Noon

Professor, Faculty of Law, University of New Brunswick, As an Individual

Prof. Vanessa MacDonnell

Thank you.

As to whether the charter should apply to private security guards or whether there's reason to place on private security guards the responsibility, for example, of providing the right to counsel and observing something similar to the dictates of the charter, what I'd say is this. In my view, maybe the best way to approach this--and as I said, it's not clear whether the charter applies to these circumstances--or one of the ways of getting at the potential concerns that exist with the private security industry is to increase or to build on the existing regulation. Now, this would likely involve collaboration with your provincial counterparts.

For example, there is legislation in Ontario that regulates the private security industry. At present, that legislation contains a code of conduct that, for example, requires private security guards not to use excessive force. I think there's no reason we could not impose charter-like requirements on the private security industry—so require them to provide a right to counsel, to not arbitrarily detain individuals. That again would likely happen provincially, but I think there's no reason we can't do that.

When you look at the private security industry, in particular, as I've said, they're very sophisticated and they're well resourced. There's really no reason that, as these security personnel are increasingly acting like police, we can't also require the same in terms of obligations or of duties of these officers. I think there is infrastructure for these companies to do that kind of training.

So I think whether we're talking about this bill or not and these changes to the power of citizen's arrest, this is an industry that's largely unregulated but probably ought to be regulated as they come to do more and more work that, as Professor Rigakos has said, looks a lot like standard policing.

Thank you very much.

Noon

NDP

Pierre Jacob NDP Brome—Missisquoi, QC

Thank you.

In other words, it is not clear whether the Charter applies to those situations. But that would be nice. A regulatory framework would be needed and 40 hours of training would be a must.

My second question is for Mr. Russomanno.

You said that private security companies were likely to be responsible for more victims and that there was a lack of transparency and accountability. Could you expand on that?

12:05 p.m.

Criminal Defence Counsel, Webber Schroeder Goldstein Abergel, As an Individual

Leonardo S. Russomanno

Yes. Perhaps I could answer in English. Thank you.

In my experience and in the experience of members of my law firm and other lawyers with whom I speak, private security guards have less training, have less experience with the use of force than do police officers. To become a police officer, it's a much more rigorous process than it is to become a security officer. In many of my dealings with cases involving security officers, there is a tendency to resort to the use of force when such force may not be necessary.

I'll provide you with a very poignant example of a person I defended a year ago who was a university student, a 23-year-old female. She was at the Rideau Centre and a fight broke out among other females. She tried to separate the parties. Security had not arrived right at the beginning of the fight. When they did arrive she was in between the belligerents, trying to separate them. Four security guards approached her, grabbed her, put her arms behind her back, and tried to handcuff her. When she tried to explain that she wasn't a belligerent party and she was trying to resist, in effect, they grounded her, which is security guard speak for they took her down. They sat on her and they ended up pressing her against the wall. She ended up in the security office in cuffs for several hours before she was released.

For about a year while she was out on bail, her schooling was completely under threat. She was in a professional program. If she had been convicted of an offence of assault—and assaulting a peace officer, no less, is what she was charged with—her entire career would have been down the drain. This is what I saw as something that was not uncommon, from the experience of my colleagues and other members of my firm. It really causes me concern. When I cross-examined these security officers, they didn't seem to know the boundaries of their duties.

12:05 p.m.

Conservative

The Chair Conservative Dave MacKenzie

Time is up.

Mr. Rathgeber.

12:05 p.m.

Conservative

Brent Rathgeber Conservative Edmonton—St. Albert, AB

Thank you, Mr. Chair.

Thank you to all the witnesses for your input and attendance here this morning.

I'm going to start with a comment more than a question, but perhaps I might ask for your comment on my comment.

There appears to be, in my view, Mr. Chair, a misconception that Bill C-26 is inspired by Mr. David Chen's predicament a couple of years ago in Toronto. I think that's wrong.

In rural Alberta there have been a couple of very high-profile cases, when RCMP were not always readily accessible. There was a case in New Brunswick that was highly publicized. I'm not entirely familiar with the facts, but I know a firearm was involved. Similarly, in one of the cases in Alberta where a conviction was made, a quad--a four-wheeled recreational vehicle--was stolen, a chase took place, and firearms were involved. Ultimately there was a conviction and the individual went to jail--under those circumstances, I would have to concede, rightfully so.

My point is that I'm not sure that Bill C-26 is inspired exclusively by Mr. Chen. My question for all the panellists is that in light of some of these other more fantastic situations where individuals have tried to defend property—and in rural Alberta, off-property, and sometimes quite some distance from the property—is it not incumbent upon Parliament to provide some clarity to the citizens as to what their rights are to make arrests and what their rights are to defend their property?

I'll start with you, Professor MacDonnell. You probably know about that case in New Brunswick.

12:10 p.m.

Professor, Faculty of Law, University of New Brunswick, As an Individual

Prof. Vanessa MacDonnell

I'll only speak for a moment and then pass it on, maybe to Professor Rigakos here.

Assuming that it's useful for Parliament to provide clarity on the extent of the scope of the powers of a citizen's arrest--which I would quite agree with you is important--if you're going to provide this power to a private citizen, it's important to be as clear as possible.

My difficulty with the proposed amendments is this reasonableness requirement probably doesn't accomplish that. So I think there's a concern that we haven't clarified the nature of these powers. If anything, we've created a situation where the individual may be less certain about whether it's appropriate in the circumstances to exercise the power of citizen's arrest.

12:10 p.m.

Conservative

Brent Rathgeber Conservative Edmonton—St. Albert, AB

Okay, thank you.

Could I hear from a practitioner's standpoint?