Justice Committee on March 8th, 2012

[The Chair, Conservative, Dave MacKenzie]

I call the meeting to order.

This is meeting 25 of the Standing Committee on Justice and Human Rights, pursuant to the order of reference of Thursday, December 15, Bill C-26, An Act to amend the Criminal Code (citizen's arrest and the defences of property and persons). Today we are at clause-by-clause consideration. I understand there are a number of amendments being proposed.

Before we start, we'll have just a little housekeeping.

I understand that if the House decides to treat the Thursday before Good Friday as a Friday, we will not have a committee meeting on that date. I'm not sure that decision has been made, but if it does happen, just for planning....

[Jack Harris, NDP, St. John's East, NL]

Do we need a motion to that effect?

[The Chair, Conservative, Dave MacKenzie]

I don't think so, no.

[Jack Harris, NDP, St. John's East, NL]

Would it just be on consensus? I think we'd accept that if that were the case. I believe that's the intention, but I haven't heard it officially.

[The Chair, Conservative, Dave MacKenzie]

I don't know whether it's happened.

[Jack Harris, NDP, St. John's East, NL]

Chair, I think everybody has a package of amendments, but I want to let people know that two of our amendments will be withdrawn.

One is NDP-10, on page 15. It will be replaced by NDP-10.1. NDP-11 is being withdrawn as well. Those are on pages 15 and 16, and they're replaced by page 15.1. That covers the concepts in both of those, so we need not worry about these as we go through.

[The Chair, Conservative, Dave MacKenzie]

Okay, I think we're ready to proceed.

We'll postpone clause 1, the short title, until we get through here.

(On clause 2)

The first amendment is Mr. Cotler's.

Would you like to move it, Mr. Cotler?

[Irwin Cotler, Liberal, Mount Royal, QC]

Yes, thank you, Mr. Chairman.

On the amendment, I just want to state this is a technical matter regarding the language. It should read “34(1)” because the amendment is only with respect to subsection 34(1), not 34(2). Right now it just says “34”. That's just a technical change.

As well, where the amendment reads “That Bill C-26, in clause 2, be amended by replacing line 8 on page 1”, it should read thereafter “to line 18” in English, and in the French it should say:

“à la ligne 20”.

That's just for technical clarification.

I repeat, it should say “replacing line 8 on page 1 to line 18” in English, and with respect to the French,

“se terminant à la ligne 20”.

Now, if I may, I'll explain the reason for the amendment, Mr. Chairman, now that I've made that technical clarification.

This amendment comes from the Barreau du Québec's submission to the minister, and I concur with their opinion as expressed here, that it is preferable to legislate in the positive rather than in the negative. I would suggest the government might want to be supportive of this change because it better reflects the very objective of the government's legislation, which is to clarify the right of self-defence. All I'm seeking to do here is to do so rather than frame it as an exception to otherwise unlawful conduct.

I realize, Mr. Chairman, that some of my colleagues may be introducing or have introduced amendments to this section that procedurally may not be able to be adopted if my amendment is accepted, but I want to assure my colleagues that if that is the case, at report stage I'll be happy to support any of their amendments in whatever language they put them forward in this regard.

That's my amendment, Mr. Chairman.

[The Chair, Conservative, Dave MacKenzie]

Go ahead, Mr. Goguen.

[Robert Goguen, Conservative, Moncton—Riverview—Dieppe, NB]

We're starting well. We'll have to agree to disagree.

We think the wording is proper. I think I understand what you're trying to do. It may be a matter of semantics, but within the framework of the act we feel that this wording is the best.

As you've characterized it there, it would characterize the defences of a justification to having acted. Basically, if you meet the criteria of proposed paragraphs 34(1)(a), (b) and (c), it's not an offence.

We're happy with the wording, and I think you said you're not striking out proposed subsections 34(1)(2) and 34(1)(3). That's what you were referring to at the start.

[Irwin Cotler, Liberal, Mount Royal, QC]

Correct.

[Robert Goguen, Conservative, Moncton—Riverview—Dieppe, NB]

That was more objectionable than the wording, obviously, but we're happy with the wording as it is. We'd be going with it as it stands.

[The Chair, Conservative, Dave MacKenzie]

Mr. Cotler is correct. If we adopt LIB-1, then NDP-1.1 and NDP-2 cannot be moved.

[Jack Harris, NDP, St. John's East, NL]

I don't know why NDP-1 would be out, but I think we're going to....

(Amendment negatived [See Minutes of Proceedings])

[The Chair, Conservative, Dave MacKenzie]

Now we have NDP-1.

[Irwin Cotler, Liberal, Mount Royal, QC]

It was a friendly clarifying amendment to the government's own objective, Mr. Chair.

[The Chair, Conservative, Dave MacKenzie]

Go ahead, Mr. Harris.

[Jack Harris, NDP, St. John's East, NL]

We're proposing that clause 2 in line 9 would state:

(a) they believe that

The reason is that we have had representations from the Canadian Bar Association concerned about ensuring that the subjective element be retained there. This would take out the words "on reasonable grounds".

Essentially we're saying that they believe on reasonable grounds that force is being used against them. I think it's important to emphasize this objective here, because that's what we're trying to do. You obviously don't have mens rea if you don't have the belief. We suggest that be changed.

I think my colleague may have some other comments.

[The Chair, Conservative, Dave MacKenzie]

Go ahead, Ms. Findlay.

[Kerry-Lynne Findlay, Conservative, Delta—Richmond East, BC]

Thank you, Mr. Chair.

My problem with this is that this motion seeks to delete one of the key elements in the defence of self-defence: that the person believes on reasonable grounds that force is being used against them. The deletion of "reasonable grounds" as a criterion would result in—for want of a better expression—the bald belief that no matter how unreasonable it may be as a basis for committing an act in perceived defence....

This new defence, as I read it, has been drafted to maintain the current approach to the perception of a threat that is both subjective and objective. I think it's important to keep both of those elements. Adopting this proposal would depart from the current approach to self-defence in relation to this core element.

I cannot support it for those reasons.

[The Chair, Conservative, Dave MacKenzie]

Go ahead, Madame Boivin.

[Françoise Boivin, NDP, Gatineau, QC]

I understand what my colleague is saying, but I think we need to consider clause 34 in its entirety. Clause 34(1) reads “ [a] person is not guilty of an offence if [...]”.

Then comes a series of provisions: 34(1)(a), 34(1)(b) and 34(1)(c). Our proposed amendment to clause 34(1)(a) would establish that the person “believe [...]”. Department officials were very clear about the fact that it was as perceived by the person in question. It is important to strike the right balance between the objective and subjective criteria. The element of reasonableness is already set out in clause 34(1)(c).

The person must believe. How can reasonable grounds be established from a person's perception? They may have a certain perception of the situation, but they still have to act on it. What does it boil down to? The person must act reasonably. Therefore, clause 34(1)(c) stays as is. I don't see why you are so concerned; the clause has to be understood as a whole.

Although some witnesses preferred to see no change, that approach would not address what the courts were asking for. Judges told us that a change was warranted. That is the very purpose of Bill C-26, for that matter.

At the same time, it is important to find the right balance between the subjective and objective criteria. To my mind, the reasonableness component is contained in clause 34(1)(c) of the bill. Clause 34(1)(a) addresses the perception of the person in question. By adding another requirement, whereby the perception must be reasonable, we may be imposing a heavier burden than the circumstances warrant.

[The Chair, Conservative, Dave MacKenzie]

Thank you.

Mr. Jean is next.

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

Thank you, Mr. Chair.

Objectively, I would like to hear the subjective opinion of the people from the department and whether it fits in the norm of what the Criminal Code currently reads.

[Joanne Klineberg, Senior Counsel, Criminal Law Policy Section, Department of Justice]

Our view is it's absolutely correct. You have to look at all the elements as a whole. Essentially, the way self-defence works now is there's the question of the perception of the threat. The perception must be subjectively held and that perception must be reasonable.

With respect to the question of whether the force used can justify the act, the question is both whether that person thought what he was doing was the right thing to do and whether was it the right thing to do from a reasonable perspective.

With respect to the front end, the perception, and the back end, the response, currently there's both a subjective and an objective component for both. We tried to maintain the combined subjective-objective in terms of the perspective of the threat, and when it comes to the response, we separate it into two distinct elements: the subjective intention to act for a defensive purpose, and the objective reasonableness of the acts that were ultimately committed. However, as you say, they all do work together.

My concern would be that if you make the perception purely subjective, then there's a purely subjective intention to act defensively. If the perception was unreasonable, then the need to act in self-defence was also unreasonable. I feel as though one side is purely subjective and the back end will be purely objective, whereas I think it's preferable to maintain a combination of both throughout the analysis.