Thank you for the opportunity to provide some additional information on just a few specific issues that were raised during the testimony of witnesses you heard over the last few weeks.
In relation to the use of technology and the citizen's arrest power, questions have been asked about whether the concept of “finds committing” can apply where technology, such as a closed-circuit TV camera, is used in observing the crime.
As several witnesses before you have noted, the courts make every effort to interpret “finds committing” in a very flexible manner. For instance, the courts have held that it is not required that the arrester see the entire transaction of the crime. It is sufficient to witness enough acts to give rise to a reasonable belief that a crime is in progress. The courts have also held that an arresting person may rely on reasonable inferences drawn from what he or she has seen transpire in his or her presence, and that it's not necessary that the arrester have personal knowledge of all the factors that lead them to conclude that a crime is in progress.
Specifically in relation to the use of technology, court cases have indeed held that observations of crime through closed-circuit television or other types of new technology are equivalent to observations through physical proximity and therefore don't detract from the “finds committing” requirement. Therefore, it appears that it would not be necessary to explicitly refer to technology in the citizen's arrest provisions.
In relation to self-defence, both Professor Stewart and Mr. Russomanno expressed concern about the new self-defence provision that would treat proportionality between the incoming threat and the defensive response as a factor to consider in determining whether the accused should be acquitted. By contrast, the current law treats proportionality between the threat and the response as a necessary criterion for the defence to succeed.
We do not consider this change to be a matter of concern. One reason for this shift is that the proportionality requirement is not actually applied literally in the courts. You've heard Professor Stewart refer to the principle that the accused need not weigh to a nicety the exact measure of defensive force he or she may use.
The courts recognize that in the heat of physical confrontation, people who perceive themselves to be at risk of harm are going to be frightened and agitated. Under these circumstances, the law does not expect a person to engage in detached reflection or to precisely calculate the amount of force that is just right to deflect the attack but no more than that. In other words, the courts recognize that actual proportionality between the threat and the response is too much to expect of a person caught up in a violent confrontation. The requirement of proportionality is, by virtue of the common law, interpreted more flexibly than its definition implies.
In simplifying the law of self-defence, the decision was made to avoid proportionality as a strict requirement, in part because it's not really a strict requirement under the law today. Instead, the ultimate measure of acceptable force would be reasonableness. Reasonableness is preferable, because by its very definition, it is flexible and slightly broader. It also certainly includes proportionality as a matter of logic.
For even greater clarity, proportionality is set out in the list of factors the court can consider, so there is really no possibility of the courts losing sight of its importance.
Logically and practically, something that is disproportionate cannot also be reasonable. For instance, if I shoot someone who is threatening to break my finger, my actions are completely disproportionate, and it is not conceivable that a court or a jury could find such actions to be reasonable in the circumstances.
Professor Stewart also testified before you that self-defence should be limited to responses to unlawful assaults. It is certainly true that the overwhelming majority of self-defence cases involve responses to unlawful attacks. These are precisely the situations that lead people to need to react defensively. It's natural to assume that this should be a limiting condition of self-defence.
However, there are rare circumstances in which a person should be entitled to act defensively against an attack that is not necessarily unlawful. Section 35 of the Criminal Code, one of the four sections on self-defence today, speaks directly to one such situation, namely where the initial instigator of an assault subsequently needs to act defensively because of the response of the other person. I would be pleased to provide further examples of such situations if you have additional questions on that.
The unlawful attack element is also removed because it causes a great deal of difficulty under the current law. This element complicates trials unnecessarily by placing the focus on the early stages of a confrontation. In asking the jury to determine who attacked whom first, the jury must look to which actions constituted the first assault. This in turn requires the jury to determine what the accused believed about the intentions of the other party. It's far preferable to focus attention on the thoughts and actions of the defender at the time when they committed the actions they are charged with.
The removal of this element is not a cause for concern for two reasons. First, the new law of self-defence would include an explicit “defensive purpose” requirement. This means that in any case where a person uses force against someone acting lawfully, they will not have the benefit of self-defence unless they were found to be genuinely acting defensively, and not for another purpose.
The second assurance is located in proposed subsection 34(3), which deals with the most common claims of self-defence against lawful conduct, namely against police action such as arrest. The new law would make it clear that in the case of police action, self-defence is only available if the defender reasonably believes the police are acting unlawfully, such as by using excessive force.
Those are my opening remarks.