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Evidence of meeting #24 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 person.

A recording is available from Parliament.

On the agenda

MPs speaking

Also speaking

Joanne Klineberg  Senior Counsel, Criminal Law Policy Section, Department of Justice
Catherine Kane  Director General and Senior General Counsel, Criminal Law Policy Section, Department of Justice

11:40 a.m.

Voices

Oh, oh!

11:40 a.m.

Conservative

David Wilks Conservative Kootenay—Columbia, BC

And I didn't lose too often.

The fact of the matter is that if we are going to encourage people to resist the police because the person believes the arrest is not proper, you potentially could put someone in imminent harm.

11:40 a.m.

Conservative

The Chair Conservative Dave MacKenzie

Mr. Wilks, this is only about citizen's arrest.

11:40 a.m.

Conservative

David Wilks Conservative Kootenay—Columbia, BC

But it was raised when—

11:40 a.m.

Conservative

The Chair Conservative Dave MacKenzie

I appreciate that, but the bill itself is just citizen's arrest.

11:40 a.m.

Conservative

David Wilks Conservative Kootenay—Columbia, BC

I understand.

11:40 a.m.

Senior Counsel, Criminal Law Policy Section, Department of Justice

Joanne Klineberg

I don't think there's anything in the legislation that seeks to encourage anyone to resist law enforcement activities. However, it is already part of the law of self-defence that if a person has a reasonable belief that they're being assaulted—and this includes if a police officer is using excessive force or attacking them, as opposed to using force within the necessary parameters to arrest them—then the present law of self-defence allows a claim of self-defence against that conduct.

All we are seeking to do here is maintain that aspect of the law, which is going to be lost from where it is presently located as a by-product of other changes to the law of self-defence. This is just a restatement in a slightly different way of what the existing law is in respect of self-defence in these cases. I don't think there's anything in the legislation...and that this is something Canadians should consider doing certainly wouldn't form a part of our public education materials.

11:40 a.m.

Conservative

David Wilks Conservative Kootenay—Columbia, BC

Thank you very much.

11:40 a.m.

Conservative

The Chair Conservative Dave MacKenzie

Please go ahead, Madam Borg.

March 6th, 2012 / 11:40 a.m.

NDP

Charmaine Borg NDP Terrebonne—Blainville, QC

Thank you.

Thank you for being here.

You have already answered most of my questions. However, a number of witnesses have said that security guards and citizens were not subject to the charter. If that is the case, how can we ensure that the arrested individual’s constitutional rights are respected? Could you comment on that?

11:40 a.m.

Senior Counsel, Criminal Law Policy Section, Department of Justice

Joanne Klineberg

Are you referring to citizens or to security agencies?

11:40 a.m.

NDP

Charmaine Borg NDP Terrebonne—Blainville, QC

Yes, I’m talking about the people making the arrests.

11:40 a.m.

Senior Counsel, Criminal Law Policy Section, Department of Justice

Joanne Klineberg

We cannot know how the charter will be applied in a specific case. That’s up to the courts. Generally, companies that provide security services come under provincial jurisdiction and are subject to codes of conduct. It is their responsibility to comply with the provincial legislation they come under. They are responsible for respecting the rights of Canadians in general. As we have said before, there are civilian remedies, or even regulatory or criminal remedies, if the companies' conduct is unreasonable in the circumstances. I don’t know if more than that can be done.

11:45 a.m.

NDP

Charmaine Borg NDP Terrebonne—Blainville, QC

That answers my question. Thank you.

My second question is about the battered-woman syndrome. A witness pointed out that the subjective elements from subsection 34(2) should take into consideration the conditions of battered women and their ability to use those self-defence provisions in court. I wanted to hear your thoughts on that. Do you think that should be expanded?

11:45 a.m.

Senior Counsel, Criminal Law Policy Section, Department of Justice

Joanne Klineberg

That was one of our concerns when we were preparing this bill. We are very much aware that it is really necessary to protect everything we have gained through case law regarding those types of situations. In the list of factors, paragraph 34(2)(f) that we want to add mentions “the nature, duration and history of any relationship between the parties to the incident, including any prior use or threat of force”. That list of factors is used to try to reflect what the jurisprudence has established. I think that what is described there leaves the legislation as is.

Adding more elements to the legislation can cause problems, as there is always the risk of saying something that is not exactly correct or something that will become more rigid than what common law calls for.

I think that what we wrote is a good reflection of the law and the jurisprudence, especially when it comes to battered women. That allows the court to continue what it is currently doing, or to do even more if it wishes. We are not inhibiting anything, or taking anything away from the current legislation.

11:45 a.m.

NDP

Charmaine Borg NDP Terrebonne—Blainville, QC

I have a third question.

Several witnesses have expressed their concern over the fact that an individual would be able to arrest another individual within a reasonable time. You have already specified that including a specific time period of 24 hours or 48 hours, for instance, would not be a good idea. Would it be a good idea to add to the provision the words “at the first opportunity”, so as to somewhat limit the reasonable time frame?

11:45 a.m.

Senior Counsel, Criminal Law Policy Section, Department of Justice

Joanne Klineberg

I think the intention is to extend the time period in cases where the arrest cannot be made when the crime is committed.

11:45 a.m.

NDP

Charmaine Borg NDP Terrebonne—Blainville, QC

So you are saying that following someone for a week to make sure they are the right person would not be allowed, right?

11:45 a.m.

Senior Counsel, Criminal Law Policy Section, Department of Justice

11:45 a.m.

NDP

Charmaine Borg NDP Terrebonne—Blainville, QC

Thank you.

11:45 a.m.

Conservative

The Chair Conservative Dave MacKenzie

Thank you.

Ms. Findlay.

11:45 a.m.

Conservative

Kerry-Lynne Findlay Conservative Delta—Richmond East, BC

Thank you. This issue arises when we're looking at this bill in terms of informing someone who is arrested about their charter rights. It's my understanding that in the law at present there is a requirement to turn this person over to law enforcement at the earliest possible opportunity, as is reasonable within the circumstances. I don't think this bill is changing that requirement, but perhaps you can confirm that.

Also, am I correct in saying that as soon as that person is turned over to law enforcement there is a requirement by law enforcement to advise them of their rights?

11:50 a.m.

Director General and Senior General Counsel, Criminal Law Policy Section, Department of Justice

Catherine Kane

That's correct. We're amending only subsection 494(2) of the code. Subsection 494(3), which requires delivery to the peace officer, remains. So this provision will remain in the law. Anyone other than a peace officer who arrests a person without warrant shall forthwith deliver the person to a peace officer. So “forthwith” has that element of “ASAP”.

In the scenario that I described earlier in response to Monsieur Jacob, if the person who is arresting calls the police and says they have arrested so-and-so for a theft, the police officer would either tell them to release that person and a summons to appear will be sent, or the police would come and take over. At that point the person would be subject to all the provisions and safeguards and notice requirements that police would otherwise provide to somebody they arrest.

11:50 a.m.

Conservative

Kerry-Lynne Findlay Conservative Delta—Richmond East, BC

So the requirement isn't on the citizen making the arrest to somehow know how to provide notice of charter rights; it's still with law enforcement, who are trained in that and would be brought in as soon as possible.

11:50 a.m.

Director General and Senior General Counsel, Criminal Law Policy Section, Department of Justice