Justice Committee on March 6th, 2012

[Joanne Klineberg]

You've hit on one of the most interesting and difficult aspects of self-defence, which is the degree to which the personal characteristics of the accused can be attributed to the reasonable person when we're looking at the reasonableness of the accused's actions.

Many of the accused's personal characteristics can be attributed to the reasonable person, but there's a limit. If we attribute every characteristic of our accused to the reasonable person, we've lost the benefit of the reasonable person test because we've made the reasonable person our accused.

The courts deal with where that line is on a continual basis. Certainly if a person had experienced violent attacks throughout their childhood, or if they had been victimized many times and that circumstance affected the way they approached situations or the way they perceived situations, to a degree those would be factors that could be attributed to the reasonable person so that we could better judge that person's actions and perceptions and be fair to them.

[Francis Scarpaleggia, Liberal, Lac-Saint-Louis, QC]

That's interesting.

[The Chair, Conservative, Dave MacKenzie]

We're quite a bit over time.

Mr. Jean.

[Brian Jean, Conservative, Fort McMurray—Athabasca, AB]

Thank you, Ms. Klineberg. That was an excellent presentation and a good response to the evidence you heard.

I have to say I agree with you in relation to the position of the department as not being prescriptive in relation to a reasonable time and other things found throughout, because I think certainly the judges have interpreted statutes for years, and we have hundreds of years of case law in many courts across the world that have interpreted these and have good solid law to back them up.

Also, I appreciate the confirmation relating to technology and the use of technology. I think that was good, and good for the committee to hear that.

I'm interested in one particular statement you made, which is that proportionality is not applied literally in the courts. I would like you to expand on that if you could, please.

[Joanne Klineberg]

If you open up a dictionary and look at the definition of proportionality, it really speaks to a direct and limited relationship between two separate things. This is where these two things are proportional to each other. It doesn't allow for plus or minus five degrees or ten degrees. That's where the courts have said that proportionality between the threat you're trying to avoid and the harm you cause is obviously a guiding principle. We don't want to allow people to shoot others just because they're at risk of having a finger broken.

So there's no question that it's extremely important. This goes back to a decision from the House of Lords called Palmer, which I think dates from the early 1970s, that has driven the rest of the case law in this area throughout the common law world. It's almost an error of law for the court not to instruct the jury to apply proportionality, not in a rigid manner but to apply it in a flexible, tolerant manner.

In other words, if someone in a situation of heightened passion, where they're fearful for their lives, inflicts more harm than was absolutely necessary, you should still consider whether what they did was reasonable based on their fear, based on the heightened tension of the situation, based on the crisis mode they were in. You should give them that latitude. And the jury should not be told to find exactly how much force was proportional to the threat and no more. They're really told to come at it with much more generosity to the situation that the accused was in.

[Brian Jean, Conservative, Fort McMurray—Athabasca, AB]

Didn't Palmer also speak in relation to escalation between the parties?

[Joanne Klineberg]

Yes.

[Brian Jean, Conservative, Fort McMurray—Athabasca, AB]

Could you confirm what the court said in relation to that?

[Joanne Klineberg]

If you could be a little more specific, that would help me.

[Brian Jean, Conservative, Fort McMurray—Athabasca, AB]

They mentioned that when the parties are in the emotional throes of a battle, the escalation itself has to do with perception by the defence on what is reasonable in the circumstances: simply that the parties can get out of hand, but that should be considered as well by the jury.

[Joanne Klineberg]

Yes.

[Brian Jean, Conservative, Fort McMurray—Athabasca, AB]

Notwithstanding that the opposition may disagree, I think I'm a very reasonable man. I'm sure everybody in the room does as well. That's the difficulty for courts, to find what is reasonable in the circumstances given everything they have.

In the case of Mr. Scarpaleggia, that was a particularly interesting case because the accused did not understand who the parties were. It went a little bit beyond his sixth sense.

The only other question I have is whether you anticipate any need to change any other statutes besides the Criminal Code, particularly in regard to provincial statues for seizures and things like that. Is there any anticipation by the department that the provinces might have to make some amendments relating to their—

[Catherine Kane]

That issue would be canvassed with our provincial and territorial colleagues. We meet with them very regularly and give them updates on the status of legislation progressing through the House. We would leave it to them to determine if they have to do anything to bring their provincial laws in line.

At the present time, we don't think that will be necessary. Usually our provincial colleagues wait until they see imminence in terms of passage and royal assent before they specifically turn their mind to the need for any adjustments.

As noted previously, we will also be embarking on some public education material so we can explain to various audiences what these changes mean. That may stimulate provinces and others to look at whether there is a need for any adjustments to be made in provincial laws.

[Brian Jean, Conservative, Fort McMurray—Athabasca, AB]

Thank you very much.

Those are all of my questions, Mr. Chair.

[The Chair, Conservative, Dave MacKenzie]

Thank you.

Mr. Jacob.

[Pierre Jacob, NDP, Brome—Missisquoi, QC]

Good morning. My question is for Ms. Klineberg or Ms. Kane.

In the brief the Barreau du Québec submitted when it testified, there are important elements regarding citizen arrests that leap out at me. The brief states the following:

In addition, the fact that a citizen's arrest must be made "within a reasonable time" after the commission of the alleged offence leaves the way open for a possible abuse of power. Any arrest includes elements of unforeseeability arising from the use of the force [...]

The Barreau provides examples and says that, in many cases, although police officers are well trained and very skilled, things can go wrong during an arrest, even when the people involved are not criminals.

I would like to know if you have considered minimizing risks in citizen arrests. That remains a considerable power. It’s a matter of respecting the law and the rights of the arrested person.

[Catherine Kane]

Thank you for the question.

I think you're drawing a comparison, perhaps between the police, who are very well trained, and private security guards, who would be effecting a number of citizen's arrests. We can't necessarily expect the private citizen to be familiar with what an arrest is and so on.

As I mentioned, we are going to be providing some public education materials to advise the public that this is not meant to encourage them to take the law into their own hands; their first resort should always be to the police.

I don't think we would have concerns about private security companies not being well trained. Certainly in our meetings with them, when we were looking at options for law reform, and in their testimony before the committee, they did indicate how very frequently they are engaged in this activity.

It's a very sophisticated and well-trained organization. Because so many businesses do rely on private security guards, they would not be wanting them to engage in conduct that was abusive. And they are monitored and regulated in other ways than through the Criminal Code.

I don't think we have concerns that there will be abuses because of these reforms that would be any different from what might occur now. In fact, our hope would be that because the law will be changed and there will be more public awareness of this, it will be the opposite. There will be more rigour in terms of avoiding any potential abuse.

[Pierre Jacob, NDP, Brome—Missisquoi, QC]

The Barreau du Québec asked some questions about arrests made by a citizen or, in the case of larger companies, by a security agency. What would be done with arrested individuals? Where would they be taken? How would the arrested person's constitutional rights be ensured? What would happen in the event of an unlawful arrest? Would the citizen have civil or criminal immunity?

[Catherine Kane]

As to how this would arise, potentially, in the department store context, perhaps a person is observed by security officers—whether by a closed-circuit television or face to face—while stealing merchandise. They would see the person leave the store and would effect the arrest at that time. They could detain the person, but there's an obligation for them to turn the person over to police as soon as possible.

What we have been advised happens in the ordinary course of events is that they would then contact the police by telephone, indicating that they have a person in custody, so to speak. Sometimes, if it's a less serious offence, the police give them a number over the phone. They get the person's details, their contact information and so on, and then they release that person immediately. The person would then receive at home a notice to appear or a summons to appear in court.

So it wouldn't be a situation where the thief would be locked up in jail or detained for a prolonged period of time. Otherwise, the police would attend, and the police would take over at that point in time and would remove the person if the person were disruptive in any way or potentially causing threats to other people in the vicinity.

Is that getting at the heart of your question?

[Pierre Jacob, NDP, Brome—Missisquoi, QC]

In part.

Let’s assume that the arrest turned out to be unlawful. Would the citizen be prosecuted if the arrested individual basically considered the arrest to be unlawful confinement? Would the individual be able to sue the private security agency?

[Catherine Kane]

That would be a possibility: we can't say with certainty whether the wrong person is arrested. Obviously, there's embarrassment there, and there could be other damages. It's possible that the person may want to pursue civil charges. That's also why, in the context of citizen's arrest, we've added the “reasonable” period of time requirement. The farther away you get from the “finds committing” to the arresting at some point in the future, the greater the risk is that the wrong person will be identified.

It's part of the balancing act between what is reasonable and whether extending the time beyond “finds committing”, which is in the very act of the offence being committed, to some reasonable point past that, creates those risks. For the average shop owner, they may be less reluctant to arrest a day later than would a private security guard, who may have more confidence that they've identified the right person.

We're not foreclosing a person's civil remedies; if they are entitled to pursue those remedies, they will.

[The Chair, Conservative, Dave MacKenzie]

Thank you.

Mr. Wilks has joined the panel as a guest. I just need consent from everyone; if there's no problem, he can ask questions.

[Some hon. members]

D'accord.

[The Chair, Conservative, Dave MacKenzie]

Okay, Mr. Wilks.

[David Wilks, Conservative, Kootenay—Columbia, BC]

Thank you, Mr. Chair.

Thank you for allowing me to ask a question.

Thank you for coming today.

There was an inference from your comments with regard to excessive force by the police. From my 20 years of experience as a police officer, I can tell you that it's normally not what occurs, but it does happen from time to time. But here's what I'm getting at. You made an inference that if a police officer is arresting a person, and that person deems the arrest to be excessive in terms of arrest, that person may believe that excessive force is being used and could potentially resist.

I would hope that there was no reference to that person committing a criminal act of resisting arrest. What most police officers will do if a person resists.... In my case, then, I up the ante: if you're going to resist, I'm going to put a little more pressure on you.

I come from a police day when there were no tasers and there was no pepper spray; it was just you and me and let's see what happens—