Madam Speaker, I am pleased to stand in the House today and speak to Bill C-26, an act to amend the Criminal Code (citizen's arrest and the defences of property and persons).
This is an excellent example, an all too uncommon example I would submit, of a government making sound legislation because consensus was sought and achieved with respect to the substance of the bill.
All parties agree with the essence of this legislation. All parties have commented publicly and foreshadowed to the government over the last two years that this legislation would be a positive amendment to our Criminal Code. As I will touch on a bit later in my remarks, that does not mean that certain provisions of the bill do not require careful scrutiny. That, I am sure, will happen at committee.
The bill would basically alter a person's ability to make a citizen's arrest. It clarifies the times when a person is entitled to defend either his or her person or property. These are both positive and overdue steps.
This legislation is an example of good law being made. The government can ensure widespread support when it seeks consensus. That also ensures smooth and timely passage of legislation, which all Canadians want to see as opposed to seeing contentious legislation put forward that eventually gets slowed down, obstructed and criticized heavily.
I want to contrast this legislation briefly for a moment with what I think is the typical and common approach of the government, and that is to generally plow ahead with highly partisan, ideological and often controversial pieces of legislation that do not reflect the majority of support in Canada.
Government members have obviously memorized their speaking lines well. It is a rare day in the House when we do not hear four or five government members stand up and say that they received a strong mandate from the Canadian people for their platform. We know that is political spin and is not correct because we all understand math.
We know that in the last federal election 61% of Canadians voted and the government secured the support of 39% of that 61%. We also know that 61% of Canadians did not give a mandate to the Conservative government. It is useful for the government to keep that in mind. In order for the government to have a positive and successful legislative agenda, it would do well to remember the fact that seeking consensus, as the government has done on the bill, is a much sounder and more democratic way to proceed as a government.
I do want to congratulate the government on this piece of legislation. Our late leader, Jack Layton, valued fairness above all other attributes in political life. He often stated that it is the job of an opposition to propose as well as to oppose, and when we do oppose to do so constructively. He would have been the first person in the House to advocate that we should give credit where credit is due.
In this case, I am pleased to give credit to the government for introducing this legislation. That is not hard to do in this case because the substance of this legislation was really an idea that was proposed by the New Democrats, in particular, by my hon. colleague from Trinity—Spadina. I will talk about that in a moment.
I want to talk a bit about the bill and where it came from. Bill C-26 would specifically amend section 494 of the Criminal Code, dealing with citizen's arrest, to provide greater flexibility. These changes would permit a citizen's arrest without a warrant within a reasonable period of the commission of the offence. Currently, section 494 requires any citizen's arrest to occur while the offence is being committed.
As I go through the history of the genesis of the bill, members will see why the current definition in the Criminal Code has proven to be problematic.
Bill C-26 would do more. It would also change sections of the Criminal Code that relate to self-defence and defence of property currently encoded in sections 35 to 42 of the Criminal Code of Canada. According to the government, these changes would bring much-needed reforms to simplify and clarify complex Criminal Code provisions on self-defence and defence of property. They would also clarify where reasonable use of force is permitted.
I am advised that the current language has been in the Criminal Code for a very long time. I am led to believe it may even be original language or language that certainly is well over 50 years old, or even closer to 100 years old. It is always positive for us as legislators to review language in our statutes to ensure the language is up to date and clear to Canadians.
As we know, it is one of the precepts of Canadian law that citizens are presumed to know the law. In order for citizens to be able to comply with the criminal law in this country, obviously they must understand it.
It is a positive step that we are actually looking at these sections of the Criminal Code. I am not 100% sure that the language in the legislation is exactly what we want it to be. However, I commend the government for putting the focus on these sections. I do think the bill goes a long way, even in its present form, in clarifying those complex provisions.
Half of the bill proposes measures that New Democrats have called for previously through my colleague from Trinity—Spadina's private member's bill which she introduced a year and a half ago. Therefore, it follows that we will support the bill at least at second reading. The part of the bill that we proposed is the part that amends section 494, which deals with citizen's arrest, to permit arrest without a warrant within a reasonable period of the commission of the offence.
I want to make it clear that we must tread a careful line, because expanding the role of citizens to become involved in arrests or to use force to defend themselves or their property is a carefully balanced one. We want to ensure that we do not encourage an unhealthy or dangerous form of vigilantism. The balance between ensuring our citizens have the right to act rationally, logically and reasonably in protecting themselves and their property and doing their part to ensure that criminals are apprehended can be done so in a fair, safe and legal manner.
I will talk briefly about the background to the bill, which is what brought the legislation to the attention of the House.
On May 23, 2009, Mr. David Chen, who is the owner of the Lucky Moose Food Mart in Toronto, apprehended a man, Mr. Anthony Bennett, who had stolen previously from his store. After Mr. Bennett was initially caught on security camera footage stealing from the store, he left the store, but returned to the Lucky Moose one hour later. At that time, Mr. Chen, the proprietor, and two employees apprehended Mr. Bennett. They tied him up, locked him in the back of a delivery van, and called the police. When the police arrived, they assessed the situation and applied the Criminal Code as it currently reads. They ended up, perversely, charging Mr. Chen with kidnapping, carrying a dangerous weapon--a box cutter, which most grocery store workers would normally have on their person--assault, and forceable confinement.
We were left with the perverse situation of a person who was defending his property in his store, who had 100% concrete evidence that the person had stolen from him not only hours earlier but I believe on several occasions in the past, did what I think any reasonable person would do in that circumstance. He apprehended that person and called the police.
Crown prosecutors later dropped the kidnapping and weapon charges, but proceeded with the charges of forceable confinement and assault.
Again, according to the Criminal Code as it is currently written, a property owner can only make a citizen's arrest if the alleged wrongdoer is caught in the act. Ultimately, Mr. Chen and his two co-accused were found not guilty of the charges of forcible confinement and assault on October 29, 2010. We often talk about court cases that we do not like, or we criticize judges when we feel they have not made the right decision. This is a case where all Canadians would applaud the wisdom of the judge who, notwithstanding the Criminal Code's provisions, saw that justice was done.
Anthony Bennett for his part pleaded guilty in August 2009 to stealing from the store and he was sentenced to 30 days in jail.
I want to pause for a moment and say to those people who feel that the bill encourages vigilantism, I would respectfully suggest that is not the case. It does not expand any powers of a citizen to make an arrest over what he or she has now. It simply alters the timeframe in which that arrest can be made. Right now if Mr. Chen had caught Mr. Bennett in the act of stealing from his store, he would have been perfectly entitled to do what he did, but the fact that it happened an hour later, under the current law renders that same act a criminal act. I think all Canadians would join with all members of the House in asserting that this is not a reasonable or logical approach to the law.
In February 2011, the government introduced Bill C-60, which was based on my hon. colleague from Trinity—Spadina's private member's bill. I should pause and say that immediately after Mr. Chen was charged, it was my colleague from Trinity--Spadina who met with Mr. Chen, helped translate his position to the media and to the public. She then went to work as she often does so diligently and drafted and introduced a private member's bill that would have done exactly what Bill C-26 proposes to do with respect to lengthening the amount of time that a citizen's arrest is possible.
Again, I will commend the government one more time in saying that the government, wisely and to its credit, adopted that bill. The Conservatives saw a good idea when one was introduced. That also shows that Parliament can work very well, contrary to what some Canadians might think about this place. It is sometimes the case that we do co-operate and make a law of general improvement to our country.
Unfortunately, my colleague's private member's bill and Bill C-60 died on the order paper when Parliament dissolved in March 2011. Bill C-26 was introduced in the 41st Parliament in a virtually identical form to Bill C-60 from the previous Parliament.
I want to turn to the other sections of the Criminal Code that the bill deals with. In addition to amending section 494 of the Criminal Code, Bill C-26, like its predecessor Bill C-60, also proposes amendments to the sections in the Criminal Code dealing with self-defence of property and person. Bill C-26 proposes a substantive overhaul of the statutory language in sections 34 to 42 of the Criminal Code. Five of these sections are from the original Criminal Code of 1892. As I said earlier, modernizing and clarifying this language is long overdue.
The courts for their part have also indicated that there are problems with clarity with respect to these sections. For example, the current self-defence provisions of the Criminal Code have been described as unwieldy and confusing and have been much criticized as a result. In the Supreme Court of Canada case of Regina v. McIntosh, Chief Justice Lamer, as he then was, stated that sections 34 and 35 are “highly technical, excessively detailed provisions deserving of much criticism. These provisions overlap, and are internally inconsistent in certain respects”.
The judgment of the majority in the McIntosh case, however, has itself been called highly unfortunate for further muddying the waters around the self-defence provisions. The majority in McIntosh held that section 34(2) of the code was available as a defence when the accused was the initial aggressor. The argument was that Parliament must have intended for section 34(2) to be limited to unprovoked assaults because it enacted section 35 to deal specifically with situations where the accused was the initial aggressor.
That argument failed. The ruling seemed to go against the history of self-defence law, which pointed to a sharp distinction between unprovoked and provoked attacks.
I have read the bill from beginning to end. This bill does a commendable job of clarifying that confusion which the highest court in our land pointed out.
As I said before, crime and complying with the law has been a dominant theme of the government. We all want Canadians to comply with the law. It is incumbent on us as parliamentarians to review that law and make sure it is clear and understandable. It is hard to expect people to comply with law that they do not understand. I must say that in reading this bill, it does a great job of clarifying when a person can use self-defence when the person is feeling a threat to his or her physical security and also when there is a threat to the person's property.
There are important considerations to this bill that I certainly expect the committee will study when it reviews the bill.
A citizen's arrest is a serious and potentially dangerous undertaking. Unlike a police officer, a private citizen is neither tasked with the duty to preserve and maintain public peace, nor properly trained to apprehend suspected criminals. In most cases, an arrest consists of either actually seizing or touching a person's body in an effort to detain the person, or where the person submits to the arrest. It can be dangerous both to the person making the arrest and the person being arrested, and in fact anybody that is around those two people.
A citizen's arrest made without careful consideration of the risk factors may have serious unintended consequences for those involved. When deciding whether to make a citizen's arrest, a person should be aware of the current law and consider the following: his or her safety and the safety of others; reporting information to police, which is usually and I would say overwhelmingly the best course of action instead of the person taking action on his or her own; and ensuring that the person has correctly identified the suspect and the criminal conduct.
I would hasten to add that the bill does not authorize a person making an arrest to undertake whatever actions the person believes are possible under law. What it does is put careful constraints around when a person may make a citizen's arrest and when a person may actually employ the defence of self-defence, whether it is against the person or his or her property.
For instance, the bill has a number of provisions that import the concept of reasonableness. This is a concept that is well known and often used in Canadian law in many different respects, both civil and criminal. It ensures that before people can avail themselves of these provisions of the Criminal Code, they must be acting reasonably; they must have a reasonable basis to act before they do; and in the course of carrying out their self-defence, they are not entitled to break the law themselves. They are not entitled to assault someone. They are not entitled to use unreasonable force. They are entitled to take reasonable, minimally invasive steps that are necessary to accomplish three basic goals: make the arrest, if that is the only reasonable prospect in the circumstances; defend their person; or defend their property.
This is something the committee, when it goes over the bill, should keep firmly in mind. We must make sure in clarifying, improving and modernizing the law that that balance is carefully met. Some people have criticized the concept of the bill because they are worried that this is going to open the door to some form of unreasonable vigilantism. They are right to have that concern. That is what we must make sure is not done in this bill.
I conclude by pointing out that what is more concerning is the defence of property as opposed to defence of person. I believe those are two slightly different circumstances and what is reasonable in terms of people defending the integrity of their physical persons may be a different circumstance than what may be reasonable in defending property. Although property is important to defend, I believe there is a meaningful distinction between those two things.
I congratulate the government on bringing the bill forward. The New Democrats support this at second reading and look forward to working co-operatively in making this bill law for all Canadians.