Madam Speaker, I am pleased to have an opportunity to speak today at second reading on BillC-26, an act to amend the Criminal Code in relation to citizen's arrest and the defences of property and persons.
This bill had its origins in the attention brought to a citizen's arrest some two years ago in Toronto. I think it was called the Lucky Moose case, after the name of a foodmart in downtown Toronto. The owner of the store was a persistent victim of shoplifting. A shoplifter, whom he had seen in his store walk away with some property, apparently came back an hour or so later. Based on his experience in trying to get the police to respond to shoplifting events in the store, the store owner felt that the only way to actually have this fellow charged was to apprehend him.
As a result, the owner was charged with assaulting the individual and with forceable confinement. I think at one point he may have been charged with kidnapping as well. However, the end result was that he was himself put before the courts.
The case caused a lot of controversy. Some of it had to do with whether the policing was sufficient in the area. We know that in larger establishments, like supermarkets and retail stores, there are often security services operating in the establishments. They have some training in apprehending people. They are in effect performing citizen's arrests based on seeing someone actively committing a shoplifting offence. They will phone the police and hold the shoplifter until the police come.
What was different in this case was that the individual had left the store and then came back. When he came back, he was not in the act of committing an offence, as the parliamentary secretary pointed out. As a result, Mr. Chen, the owner of the store who did this, was not inside the provisions of section 494 of the current Criminal Code that says a citizen may arrest someone who is found committing an indictable offence, or personally believes on reasonable grounds that a criminal offence has been committed and is escaping from it, and is freshly pursued.
Actually 494.(2)(b) was the section that he was purporting to act upon. It states:
A person authorized by the owner or by a person in lawful possession of property, may arrest without warrant a person whom he finds committing a criminal offence on or in relation to that property.
There is a provision that says, “Any one other than a peace officer who arrests a person without warrant shall forthwith deliver the person to a peace officer”.
The normal process for shoplifting is that the store detective, or the store owner, can actually apprehend individuals, phone the police, and forthwith turn them over and the police handle it from there. In this case, because the arrest took place an hour later on a return visit, the owner did not have any basis under section 494 to arrest this individual.
Hence, the legislation originally came forward as a private member's bill introduced our colleague, the member for Trinity—Spadina. I think she might have even called it the Lucky Moose bill in honour of Mr. Chen. It received widespread support from all sides of the House.
Many people who are in the position of being lawmakers are very concerned about passing laws that would encourage a vigilante type of justice. This is why this is such a touchy area.
As the parliamentary secretary said, we have a highly trained police force operating across the country. We have a national police force, local police forces and community policing. There are people patrolling on foot in Chinatown, where the event happened, and other areas of Toronto. These are the people on whom we need to rely.
On the other hand, not every store owner has access to security guards or store detectives. The concern here is for the person trying to run a business. In this case, Mr. Chen was trying to run a business and protect his property. I think most people would think he acted reasonably and detained the individual without using excessive force. However, that is forcible confinement, for which Mr. Chen was charged. If one uses force to confine someone to prevent the person from leaving, that is an offence. However, the citizen's arrest provision provides a defence for forcible confinement by changing it to an arrest, provided the arrest is made within a reasonable period of time.
I suppose if one knows who the individual is, one would phone the police to tell them that the individual is known to have done this before and was witnessed taking something and leaving. The individual would not be chased because of the danger involved and the police would be called. However, if one does not know who the individual is, then the only way to apprehend the offending stranger is to take advantage of the opportunity to pursue.
We support this aspect of the bill wholeheartedly. I think it takes a minimalist approach by making changes to section 494. When I say minimalist, I mean that it does only what is required by the circumstances in which Mr. Chen found himself.
There have to be two conditions: one must witness the offence and the arrest must be made at the time of the offence or within a reasonable time after the offence is committed. Also, one must believe that, on reasonable grounds, it is not feasible under the circumstances for a peace officer to make an arrest.
We could say that when the individual came back into the store, instead of arresting him, the police should have been called right away. However, in Mr. Chen's experience, the police often did not come fast enough and he thought that this individual would be gone again. Mr. Chen would have had this defence, if it fit the circumstances.
Of course, as legislators, we should not make laws every time something unusual happens. However, if the unusual happening points out a flaw in the law where people see an injustice, then I think that a reasonable legislature should take some action, and we support that wholeheartedly.
I want to speak about the powers of self-defence. This is complex, as my colleague, the parliamentary secretary, has pointed out. I do not disagree with the overall thrust of his comments.
As it stands, sections 34 to 42 of the Criminal Code deal with the issues of self-defence. We have specific provisions which allow for self-defence of the person, property and dwelling houses. Historically, there have been reasons for that.
Within the provision for self- defence of a person, there are two categories. One category is for a victim of unprovoked assault. The other category is for a victim who may have started a fight, but the response is so overwhelming that he or she has had to defend himself or herself.
I have no doubt that the rules are complicated. I am looking at the annotated Criminal Code. It starts off with the section with which we are dealing. It then has a series of annotations from case law, covering what the courts have said about these various provisions. I see that even though we are only dealing with relatively short sections of the Criminal Code, there are more than a dozen pages devoted to the cases that have interpreted these sections. That tells us two things: number one, the provisions are litigated relatively often; and, number two, the courts have a history of actually interpreting that legislation.
Section 41, in reference to the defence of a dwelling house and assault by a trespasser, states:
Every one who is in peaceable possession of a dwelling-house... is justified in using force to prevent any person from trespassing on the dwelling-house or real property, or to remove a trespasser therefrom, if he uses no more force than is necessary.
That is a specific limitation on the use of force. I have been a victim of a break and enter in my house. For example, if someone came into my house and I had no idea what the situation was, I could not get a two-by-four, wait for the individual to come around a corner and crack him or her over the head with it because the person is in my house. If I happen to have a registered weapon or shotgun, I cannot shoot the person just because he or she is on my property.
When we were kids we heard stories about stealing crabapples. We may remember hearing about homeowners with salt guns. I do not think I ever saw a salt gun, but they were shotguns that people would put salt in. We had neighbours we were frightened of because they supposedly had a salt gun. If people were caught stealing crabapples, they would get shot with a salt gun. I have never actually met anybody who was shot with a salt gun, but it would probably be illegal. I hope it would be illegal, but that does not mean it did not happen. Similarly, if people walk on my property, I cannot tell them to get off my lawn and if they refuse, pepper them with a shotgun. That is unreasonable force. That is not force people are allowed to use under the Criminal Code.
In criminal law and the interpretation of law, words are very important. This is especially true when, in the case of these provisions in the Criminal Code, 100 years or more of judicial interpretation has helped to establish how these words are interpreted. An example would be the situation where there is more force than necessary. If people use more force than is necessary, they are going to be convicted of an offence. In fact, even outside the provisions of self-defence, section 26, which also applies to citizen's arrest, states:
Every one who is authorized by law to use force is criminally responsible for any excess thereof according to the nature and quality of the act that constitutes the excess.
We are not changing that. Regardless of what changes are made to sections 34 to 42, this excess force provision would remain. I am saying this off the top of my head right now, but perhaps it is all right to get rid of the provision of no more force than is necessary because there is the excess force provision in section 25. However, I am using that as an example.
We agree that there may be some confusion. The Supreme Court of Canada has indicated that there may be some confusion in the law. It added more confusion, in the case of McIntosh, by deciding that sections 34 and 35 were somehow not separate approaches but should be looked at together. The question is how we can eliminate that confusion without causing other problems or encouraging people who might take the law into their own hands and do things that are dangerous.
We support the citizen's arrest case in principle and feel that there is no need for change to the provision. On the idea of looking at the whole question of self-defence, are we making it more likely to be abused? Are we making it easier to understand and to apply? Are we sending the right message to citizens? Or are we encouraging, perhaps, more self-help in situations where the police should be called or where extreme restraint ought to be encouraged? Obviously, people have a right to defend themselves.
I have practised criminal law among other kinds of law over the years. There was one individual who was charged with manslaughter who was acquitted on the basis of self-defence. They were very tragic circumstances. The individual who died should not have died. It was a complicated case because he died several days later after having hit his head. The simple question was whether the blow that caused him to fall was an assault or was in self-defence. If it was an assault, he was guilty of manslaughter even though it was a trivial blow. If it was a blow in self-defence, then it was not manslaughter. The individual ended up with a subdural hematoma, a cracked skull. He was not properly treated at the hospital and died three days later. Self-defence is very important for that reason: it can mean the difference between the kind of consequences that I am talking about and a proper defence to a charge. We have to be very careful in doing that.
We will support this bill at second reading. We want it to have careful consideration, which is code for not rushing it through, I say to the Parliamentary Secretary to the Minister of Justice and the committee. We do not want to see this dealt with in one meeting. We want to hear from people who have practised criminal law. We want to hear from experts in the Department of Justice, from the Canadian Bar Association and others. We need to examine it very carefully. We need to ensure that by making changes, we are not throwing away 100 years of precedent and all the advice that the courts have given. If we are starting off with a blank slate and a whole new law, it may take another 10 or 20 years of case law to understand what that means. Do we really need to go down that road? I think we have to answer that question with the kind of detailed study that can take place in a committee. I know the member from Athabasca who spoke earlier is on that committee, along with the parliamentary secretary, others with legal training and lawyers who have practised in the area. Also, we would rely not just on ourselves but the expertise of people who have analyzed these provisions, studied all the cases and who can help us ensure that we are doing the right thing.
Having said that, we will support this bill at second reading but we do want to have extremely careful consideration given to it in committee.