Debates of Dec. 1st, 2011

Citizen's Arrest and Self-defence Act

[Don Davies, NDP, Vancouver Kingsway, BC]

Mr. Speaker, that question raises a number of important considerations. In order for people to have respect for criminal law and the public to have broad public buy-in to our law, they must believe the law accords with their own common sense and what are reasonable circumstances. That is what the genesis of bill raises.

Canadians from coast to coast were legitimately shocked and very opposed to the concept that a store owner who was doing nothing more than apprehending someone, without assaulting the person, while defending his property and waiting for the police to arrive, would be arrested. It is that kind of application of the law that can breed disrespect. As parliamentarians we must be vigilant to guard against that.

In terms of judges, I again point out that there is a live issue in the House about how much discretion judges should have. We often point to cases in which we do not like what the judges have done. However, in this case there was a very wise and prudent decision by the judge and I think that in itself has helped to engender greater respect by the public for our legal system.

[Anne Minh-Thu Quach, NDP, Beauharnois—Salaberry, QC]

Mr. Speaker, I thank my colleague for providing some explanations, especially concerning the care that was taken in drafting this bill and the importance of having the time to study each of these measures in committee.

I would specifically like to talk about the potential dangers facing crime victims. I worked for 10 years in a corner store and I was the victim of armed robbery. It ended well, but you do not know how you will react in such a situation. You do not know the kind of strength you have when you are scared or when your adrenalin is pumping. Serious accidents can happen.

I would like to know what he thinks about the danger that this bill could present. This bill is very important, but we have to frame it in order to minimize the risks.

[Don Davies, NDP, Vancouver Kingsway, BC]

Mr. Speaker, that is an excellent point that cuts to the essence of where the balance must be found in this bill. An individual who is unlawfully threatened or attacked must be accorded the right to respond. I think we would all agree with that concept.

If Canadians are at home and awaken at 2:00 in the morning to find an intruder in their living room, down the hallway from where their children are sleeping, I do not think anyone would disagree with the concept that they must, as citizens, have the right to defend their person, their family and their property. However, that right of response is not an unlimited one. It is not currently unlimited under the present law and it would not be unlimited under this legislation either.

The law does require, and under this bill would require, a person who uses force to do so in a measured way and to only utilize force that is necessary and proportionate to the threat and only in circumstances where it would be reasonable to do so. We can all imagine situations where people could abuse this right, just like we can imagine situations like the example I just gave where people should be able to utilize force.

This is why it is very important for a committee to examine that balance, to hear from witnesses and ensure the language carefully meets that balance. I personally think the government has done a very good job in achieving that balance in its draft of the bill in its present form. I do not want to second-guess committee. As it studies the bill further, there may be improvements made to the language. However, the government has recognized that a balance needs to be struck. We want to send a message to Canadians that they have the right to defend their persons or property, but they are not entitled to abuse that right for the purposes of assaulting someone or defending their property in unreasonable circumstances.

Our law is filled with those kinds of balances and I am confident we can achieve that balance in the current legislation.

[Brent Rathgeber, Conservative, Edmonton—St. Albert, AB]

Mr. Speaker, it is an honour for me to rise and add my contribution to the debate regarding Bill C-26, An Act to amend the Criminal Code (citizen's arrest and the defences of property and persons).

Bill C-26 will clarify for Canadians how they may respond to immediate threats to their property or to any person and the criminal acts necessitating urgent arrest situations.

Many members of the House will be familiar with well-publicized stories about Canadians being charged with crimes arising from situations where they were defending themselves, their family or their property. We can all imagine cases where people charged with a violent offence would claim that they had used violence to defend themselves without that necessarily being the true story. It is also likely that, from time to time, someone would use a minor threat or insult as a pretext to launching a violent attack against another.

We want to ensure that our laws do not allow for such cases, because if this were so, many innocent Canadians could be victimized with no repercussions against the wrongdoer.

On the other hand, the law must also provide greater clarity for force that is authorized and must set out the conditions which the aforementioned defensive action is acceptable. It is these very conditions that distinguish between revenge and genuine defence and between reasonable and unreasonable conduct.

Bill C-26 would extend the power of citizen's arrest in relation to property offences and would clarify the laws of self-defence and defence of property. These reforms are first and foremost about ensuring that Canadians understand the law in this area and that they are able to defend their vital interests and apprehend wrongdoers.

They are not required to stand by and watch their property be taken or destroyed or a stranger get assaulted. When the police are not around, Canadians need not be helpless. They can help themselves and their fellow citizens and, where necessary, assist in bringing wrongdoers to justice.

The reforms are also intended to assist police officers and prosecutors who exercise their discretion on a daily basis in respect to the charging and prosecuting, so as to minimize criminal charges being laid in situations where a defence is clearly available. Clarity in the law will hopefully weed out the cases of reasonable action, which need not result in criminal charges at all, and distinguish them from cases where there are discrepancies in the accounts given by witnesses, or where the threat posed was small, relative to the harm or injury caused. or other cases where there is some uncertainty about the reasonableness of the actions that were taken.

Finally, clarity in the law will help speed up trial process when charges are genuinely justified. It will also reduce unnecessary appeals and save precious time for our admittedly overworked court system.

How will Bill C-26 accomplish all of this?

First, it makes a modest extension of the existing power of citizen's arrest in the cases of property crime. Right now people can only arrest another if they find the person committing an act. This means that if there is no opportunity to arrest at the very moment, say for instance because the thief is faster and runs away, but there is an opportunity to arrest at some reasonable time afterwards, the law currently says that the arrest is unlawful. One literally has to catch the person in the act under the current law. This applies to people who try to bring to justice people who have committed an offence on or in relation to their property and stand to be charged and potentially convicted of a serious Criminal Code offence that they may have committed in the course of apprehending the suspect under those circumstances.

I hope all members can agree, and it sounds like all members do agree, that allowing people to arrest within a reasonable time of having witnessed a crime makes good sense. We do not want to criminalize otherwise law-abiding citizens and business owners who are trying to protect their property from thieves and mischief-makers. We know that situations occur where the person observed to have committed an offence returns to the scene of the crime or is seen elsewhere and can be easily identified. Arrest should also be possible in these limited circumstances.

Let us be clear that this proposal is a modest extension of the existing law. However, I know some Canadians are concerned that the proposed expansion of citizen's arrest powers will encourage vigilantism, but I do not agree.

The law of citizen's arrest already contains a very important safeguard against the arrester using the laws for improper purposes. The safeguard is a requirement in 494(3) of the Criminal Code, which states:

Any one other than a peace officer who arrests a person without warrant shall forthwith deliver the person to a peace officer.

This requirement ensures that a citizen's arrest becomes a matter of police attention as soon as is possible.

A new safeguard against vigilantism is included in this legislation, Bill C-26, in relation to the expanded powers of citizen's arrest. A person would now be able to arrest someone who they have witnessed committing an offence in relation to property within a “reasonable period of time” after the offence was committed.

However, where a person seeks to use this expanded power as a precondition, he or she must first determine whether it is feasible for a peace officer to make the arrest instead. There would now a double safety net against abuse of arrests where the arrest happens at some point in time after the original offence was witnessed.

The citizen arresters must turn their mind to the possibility of the police making the arrest. If they determine that under the circumstances that is not feasible, once they have made the arrest they must contact the police as quickly as is practicable and turn the suspect over.

Of course, the overarching rules with respect to using force during an arrest continue to apply. These rules ensure that a person making an arrest can use force but any such force must be reasonable in the circumstances. If the suspect willingly submits to the arrest, then no force is necessary. If he or she resists, then some force may be called for but the force must still be reasonable under the circumstances.

Excessive force, is, by definition, not reasonable. Deadly force, whether used by the police or by the citizen, can only be justified where human life is at risk. These rules are clearly set down in section 25 of the Criminal Code. Bill C-26 makes a reference to section 25 so that it is clear to everyone which rules apply.

This legislation would not increase the potential for vigilantism. The government discourages vigilantism. Bill C-26 is designed to allow citizens to protect themselves and their property only when police are not able to do that for them. It strikes a reasonable balance.

Bill C-26 would do more than increase the period of time in which a citizen's arrest can be made. A citizen's arrest situations often overlap with the defence of property, so Bill C-26 would ensure that the law governing the defence of property is clear and effective.

Currently, the defence of property is set out over five provisions that make many distinctions between slightly different circumstances, such as where the property in question is an object or land.

There is no need for different variations covering different cases when they are all based on the same general principle, that people should not be held responsible for a criminal offence if they act reasonably in an effort to protect property in their possession from being taken, damaged, destroyed or trespassed upon.

Bill C-26 would replace all of the existing rules with a single general defence that is capable of being applied to any type of property defence situation.

I must admit that I read the existing provisions just prior to standing up in the House and they are complicated and complex. I had a difficult time applying each rule to a specific fact situation. This is why Bill C-26 clarifies the rules with respect to defence of property. This is precisely the sort of simplification that will help the police gather evidence and make decisions or recommendations about whether criminal charges are appropriate. It is also the kind of simplification that Canadians need.

Property disputes often arise when someone is doing something unlawful, such as stealing a car or breaking into a house, but the defence can also arise in cases of genuine property disputes involving people who are all behaving lawfully but simply disagree about which of them is entitled to a particular item of property and what exactly they are allowed to do or not do with it.

For instance, disputes over access to a right-of-way or over where the a boundary is between two houses can and do lead to violence, just as conflict between a property owner and a thief or a criminal intruder can. The defence of property can apply to all these situations.

For that reason, it is inescapable that matters of property law must inform the criminal defence of property. That is why the defence of property is premised on the concept of “peaceable possession” of property. This concept has been interpreted by the courts to mean that the possession of property must not be seriously challenged by others. The seriousness of the challenge is assessed by looking to whether the challenge to the possession is likely to result in a breach of the peace. Of course, anyone who actually possesses property in circumstances that would involve a breach of the peace, such as protestors occupying a government building, should not be entitled to use force to defend their possession of that property in that circumstance.

Another aspect of the law that Canadians should know is that our courts have consistently held that intentionally causing death in defence of property alone, as opposed to in the defence of a person, is never reasonable. This principle is founded on the greater value to our society and to the value that it accords to human life over the value accorded to property. I am sure we can all agree with this reasonable approach. Nothing in this approach limits the availability of self-defence, which is the other defence that would be simplified by Bill C-26.

Any situation that creates a reasonable perception of a threat to a person, and this would clearly include a home invasion, or could even include a carjacking and other types of situations, gives rise to the ability to defend the person being threatened. Deadly force is permitted in defence of the person but, of course, as always, it must be a reasonable response given all of the circumstances.

The proposed new defences in Bill C-26 would capture the essence of the current law but in a much simpler way. The new laws would clearly and simply set out the conditions for a defensive action.

First, there must be a reasonable perception of a threat to property that someone possesses. Threats to property can involve threats to damage or destroy the property or to somehow render it inoperative. It can also include threats to enter certain types of property without lawful position, such as dwellings or other buildings or even a vehicle.

It is important to note that people can be mistaken about the threat that they perceive. What matters in these cases is whether the mistake was one a reasonable person could also make in identical circumstances. We cannot take away a defence where a person behaved reasonably and perceived the situation in a reasonable manner, even if the person were factually mistaken.

However, on the other side, if people make an unreasonable mistake, that is to say, if they fall below the standard of reasonable action and perception, they would lose the defence.

My friend from Vancouver Kingsway talked about the importance of the concept of reasonableness and the reasonable man in both civil and criminal law. I agree with his interpretation and its importance to both these situations and to this legislation.

The second element of the defence is that the person must genuinely act for a defensive purpose. Defence of property can never be a pretext for revenge. If the person does not really care about the property but to use the other person's threat as an excuse to assault him or her, the law would not justify that conduct.

Third, whatever actions are taken for that defensive purpose, they must be actions that a reasonable person in the same circumstances could also have contemplated and taken.

There is no way to describe what reasonable actions are because what is reasonable to defend a particular item of property against a particular type of threat is likely to be different from actions that could be reasonable to defend other property from a more or less serious type of threat. That is a very long sentence to say that these situations are all fact specific. It all comes down to the circumstances of each case.

These conditions are easy for Canadians to understand. They should also be relatively easy for the police to assess and juries as well, if charges are appropriate. Canadians will understand that they must genuinely be acting to protect property and not acting to take revenge against someone. They should also understand they must conduct themselves within socially acceptable standards within which a range of conduct is likely to be reasonable. As long as Canadians bring themselves within this range, they will be justified in using the force that they need to in order to keep themselves, their families and their homes safe.

Bill C-26 would also bring greater clarity and simplicity to the defence of self-defence. The proposed new defence would also apply in cases where a person uses force to protect a third person.

Today, the Criminal Code says that a person can only defend another person who is “under his protection”. The courts have given this phrase different meanings. It is not as clear as it should be that citizens can defend not just their children or their elderly parents, but they can also defend their fellow Canadians, even strangers, when they come upon them in a situation that presents a grave threat. The bill would clear up this aspect of the law, and appropriately so.

However, the reforms to self-defence would do more than just that. They would simplify the law in other ways and bring a variety of different rules into one single rule that would be applied no matter what the circumstances. The basic elements of self-defence mirror those of defence of property but they are even simpler because complicated property concepts are not involved.

Right now, four separate sections of the Criminal Code set out various versions of the defence of the person, each of which applies in a slightly different set of circumstances. The law simply is way too complicated and confusing. The fact is that such complexity is unnecessary because the basic elements of the defence are relatively straightforward. Bill C-26 seeks to reduce the defence to its core elements.

The conditions for defence of the person under Bill C-26 can be stated relatively briefly. First, the person reasonably believes that he or she or another person is being threatened with force. Second, the person acts for the purpose of defending himself or herself or the other person from that force. Third, the person's actions are reasonable in the circumstances.

As with the defence of property, mistakes can be made by the defending person as long as those mistakes are reasonable. The defending person must genuinely be acting with a defensive purpose and must not be using the threat as a pretext to engage in violence that he or she would otherwise desire to engage in. The reasonableness of the actions taken in defence of the person must be assessed in relation to all of the relevant facts and circumstances.

Bill C-26 proposes a list of factors to help guide this determination. These factors frequently arise in the self-defence context. Factors on this list include: whether any party had a weapon; the nature of the threat the person was facing; whether the individuals involved had a pre-existing relationship, especially if it is a relationship that involved violence or threats; and the proportionality between the threat and the response will be a critical factor in determining whether under the circumstances the defence was reasonable.

These factors are drawn from real cases and from the courts' interpretation of the current law. The purpose behind these provisions is to signal to courts, as well as to police and to prosecutors, that the essence of self-defence is not changing. Reasonable actions under the current law should continue to be reasonable under the proposed new law.

These are the sorts of determinations our courts make regularly. However, by simplifying the law, by clearing away the clutter and putting in the Criminal Code the crucial questions and crucial factors, Bill C-26 would clear the path for them to get straight to the important questions.

The bill would also make it easier for police at the scene of a crime to apply the law before making charging decisions. Bringing clarity to the law will mean that legitimate self-defence actions lead police and prosecutors toward the decision that laying a charge would not be in the interests of justice. In this way, the bill continues to stand up for victims.

The bill is a delicate balance but, as previous speakers have said, this is the appropriate balance to balance the rights of individuals versus the rights of people who cause threat to those individuals or to their property.

[Lysane Blanchette-Lamothe, NDP, Pierrefonds—Dollard, QC]

Mr. Speaker, earlier, my colleague said that we would support this bill at second reading so it can be studied in committee. He also said that we had to ensure that we did not encourage vigilante justice or excessive force.

Does my colleague think that we should perhaps modify the wording of Bill C-26 to ensure that it does not open the doors to using force to protect oneself against theft or to having people take the law into their own hands and perhaps misinterpret this law, which could lead to things we would not want?

[Brent Rathgeber, Conservative, Edmonton—St. Albert, AB]

Mr. Speaker, the hon. member is right. I am on the justice committee and public safety committee, and I know that when this bill was being drafted, great consideration given not to send the signal that vigilantism is to be promoted or encouraged, or that individuals ought to take the law into their own hands.

This bill, as other members from that side of the House have correctly pointed out, strikes a very close balance. I admit there are cases that come close to that line. Nonetheless as legislators we have to try to balance the rights of individuals to protect themselves, their families and property against those who would cause harm. The issue becomes one of reasonableness. The test will vary from situation to situation.

I represent urban constituents where access to police is relatively expeditious. Individuals in rural and remote areas have different challenges. The test in each circumstance, which I said in my comments will be fact specific, is one of reasonableness. If people act reasonably, they will have the protection of this law. If they do not act reasonably, they will be charged.

[Anne-Marie Day, NDP, Charlesbourg—Haute-Saint-Charles, QC]

Mr. Speaker, we currently have groups of citizens who essentially form their own patrols to defend themselves or protect an area in their city or municipality. These people replace police officers, use force and arrest other citizens. In the heat of the moment, they often do not take the time to call the police or to see whether a police officer could intervene.

Does the member think that this bill could encourage people to take the law into their own hands? This is similar to the previous question, but we are talking about groups here.

[Brent Rathgeber, Conservative, Edmonton—St. Albert, AB]

Mr. Speaker, in my constituency there are those types of groups, although they are very passive, such as Neighbourhood Watch, for example, where people watch out for suspicious activity in their neighbourhoods and then contact police. I do not know exactly which groups she is referring to in her riding or elsewhere, but I am not concerned that this legislation would give licence to vigilantism, whether it is organized or otherwise.

This law would make it very clear and specific that police are to be called as soon as possible when it is practicable, and that the right for citizens to make arrests are very limited to circumstances where it is not practicable to call the police, when they use only reasonable force and turn the individual over to the police as soon as it is practicable.

It is quite the opposite. This law would clarify to potential groups that take it upon themselves to provide safety for their neighbourhoods what they can and cannot do legally.

[Hélène LeBlanc, NDP, LaSalle—Émard, QC]

Mr. Speaker, I thank the member for Edmonton—St. Albert for his presentation and clarifications. Reasonably discussing Bill C-26 presently before the House is a very good exercise and I really appreciated his presentation.

I understood from his presentation that he has a legal background. He mentioned that just for this special provision in this bill the Criminal Code is very complicated and complex. I want to compare and contrast that with Bill C-10 that we just passed at report stage in the House, which contains many provisions of the Criminal Code. Why did we not have the same approach in breaking down Bill C-10 as we are doing right now with Bill C-26?

[Brent Rathgeber, Conservative, Edmonton—St. Albert, AB]

Mr. Speaker, I am not sure that I fully understood that question. What I said in my comments was that the bill before the House, Bill C-26, clarifies the existing provisions, specifically sections 34 to 42, which create a rather complex and convoluted set of circumstances with respect to when reasonableness in defence of property would apply, depending on whether it is real property or personal property. This bill aims to, and I think succeeds in that aim, clarify when the defences of property and person would apply.

The member made some reference to Bill C-10 that I did not quite understand. However, certainly this bill fits in the entire umbrella philosophy between this bill and Bill C-10 in that the government continues to stand up for the rights of victims. This bill fits into that umbrella because when victims of crime take measures to defend themselves or to defend their property, as long as they act reasonably they ought to have the protection of the law.

[Lysane Blanchette-Lamothe, NDP, Pierrefonds—Dollard, QC]

Mr. Speaker, the member for Edmonton—St. Albert said he is a member of the Standing Committee on Justice and Human Rights. So he no doubt knows how complex the Criminal Code is when it comes to self-defence and defence of property.

A little earlier, my hon. colleague from St. John's East said he would like to see this bill get a thorough examination in committee in order to see if it could be improved significantly. For instance, he said he expected to hear from legal experts on self-defence and defence of property.

I would like to hear what the member thinks of those expectations. Does he believe it would be worthwhile to hear from such experts, and would he be open to receiving their recommendations on how to improve this bill?

[Brent Rathgeber, Conservative, Edmonton—St. Albert, AB]

Mr. Speaker, assuming this bill passes second reading, and it appears it will because I think it has support from all sides of the House, the bill will go to committee and the committee will call expert witnesses. As I indicated in my comments and as was stated, I think, by the NDP justice critic and certainly the member for Vancouver Kingsway, this is a good bill in principle, but it is a delicate balance to weigh the rights of citizens versus the rights of those who potentially cause harm to citizens.

Yes, we will vet the language. We will call on experts from victims groups, from police groups and presumably from academia, as we do with every other bill. If it is appropriate to make technical or linguistic amendments to this bill to make it more precise, we will do it.

In fact, the opportunity for making modest amendments is presumably more likely in a bill where there is philosophical agreement with the contents of the bill and we do not use the committee as simply another mechanism for the opposition to oppose the bill. This committee will actually meet purposely to ensure that the bill has the appropriate language and balance between citizens and those who cause harm to citizens.

[Malcolm Allen, NDP, Welland, ON]

Mr. Speaker, I am pleased to join the debate on Bill C-26, albeit not as eloquently perhaps as my colleagues before me since I am not a lawyer. I know they have billable hours, but I am not sure if they have billable words. Nonetheless, it has been very insightful to listen to folks talk about what is and is not codified in law, subsection this and that. However, for lay folks living in communities, they do and have seen the reality.

Fortunately, my family has not gone through the trauma of someone breaking into our home. Someone did make off with my brand new snow blower last year, but it was in the shed. They did not break into my house, just my shed, but twice they broke in and made off with the snow blower and other sundry items. This did not affect me or my family personally as we were not there. I am sure the dogs barked like crazy, but they were in the house. The snow blower is out there somewhere in this country and someone is using it quite happily I guess.

Although I was joking earlier about billable hours and billable words, clearly there is a delicate balance of these difficult aspects. We are trying to balance the needs of those folks who are victimized by someone breaking into their home or assaulting them, with what my colleagues term, reasonableness. As my colleague for Edmonton—St. Albert said, eventually the issue would be determined by fact, which then becomes making a determination.

Clearly, there are difficulties in the present law, such as in the R. v. McIntosh case. When the rendered judgment came back to us, the lawyers said it was more muddied than before. What people thought may have been a clarification, for the legal profession, it became a muddied place.

If it is a muddied place for those folks who work with the Criminal Code on a daily basis, whether they be lawyers or judges, what is it for the rest of us who do not study the law? For those of us who may be trying to make a citizen's arrest or something in self-defence, how do we determine what is a reasonable or unreasonable act?

This reminds me of the old adage: if one can flee, then one should flee. It there is an opportunity to get away, one should, in some cases, rather than fight. We need to take that into consideration.

I am not for a moment suggesting that this amendment to change the legislation tries to suggest that somehow one should fight more often than flee. I simply raised this so that folks would keep it in mind when they find themselves in a position where they are present during a break and enter or a violent act is committed against them. There are times when if one can get away, one should just simply get away and call the appropriate authorities. Unfortunately, there are moments in life when that is not going to be the case and one has to take into consideration how that can happen.

There are instances dating back to the 1100s in English common law where a citizen's arrest was allowed. Therefore, this is not a new practice. The legislation being brought forward by the government is certainly not a new practice. It seems to be an attempt to clarify the waters that we presently have with the present act or code as to what exactly it is.

The member for Trinity—Spadina in the last Parliament brought forward somewhat similar legislation, albeit not quite the same. It talked about the incident in her riding with Mr. David Chen. Many of us will remember that he had arrested someone who had burglarized his store on multiple occasions. Mr. Chen made a citizen's arrest and then was charged himself for forcible confinement, kidnapping and all manner of charges. Fortunately, most of those charges were dropped and eventually he was acquitted.

We do not want to see another Mr. Chen or Ms. Chen somewhere down the road going through that experience. All Mr. Chen wanted to do was protect his property and make what turned out to be a reasonable citizen's arrest. The perpetrator eventually pleaded guilty to stealing from Mr. Chen and spent 30 days in jail. Clearly, Mr. Chen, in a reasonable way, had tried to stop the person who had been victimizing his property by stealing from him on numerous occasions.

It seems the gentleman who was stealing from Mr. Chen felt like he was a regular customer, except he never paid for anything. He simply would take what he needed. I guess he thought he had an account and would pay it off later, but clearly, that was not true.

How do we balance those things in the legislation that comes before us is the trick.

I am heartened by what I heard from the government benches, that those members want to take the time to listen to experts, to victims and folks who have great expertise in this area. They want to sit down and find a balanced law that will defend the rights of both sides. There are rights on both sides of this issue. There are the rights of those who have taken reasonable grounds to protect property and persons, themselves and their family, and there are the rights of the accused. Ultimately, making a citizen's arrest is simply allowing one to say that a person is accused of something. It is for the courts to decide, not those who make the citizen's arrest, whether someone is guilty of a particular offence.

We have to strike a balance. We cannot have more Mr. Chens where a regular law-abiding citizen in the due course of his business is victimized and then finds himself in a predicament where he has to hire a lawyer and go to all that expense, as well as the trauma of going to trial, for doing what he thought was a reasonable thing.

It strikes me that when the government is saying it intends to do something, I am not too sure why we did not do it in some of the other aspects. Bill C-10 is a prime example. The member for Mount Royal brought forward some amendments to Bill C-10 in committee. The government did not deem them to be worthy enough or was not interested enough at the time, and said no thanks, which is the government's right to do. Unfortunately, the minister brought ostensibly the same amendments forward and was ruled out of order because it was too late because the government had cut off the time available to make any reasonable amendments.

If the government believes this is worthy of study, and it is, I would suggest that when we work on big pieces of legislation such as Bill C-10, that they are also worthy of the same type of consideration, analysis and due process. We should go through them item by item.

Here we have one single solitary bill, Bill C-26, that speaks to one aspect of the law, not multiple parts. It speaks to citizen's arrest and what a reasonable person is expected to do.

I know it is hard for some of us to define what is a reasonable person. My colleagues, the member for St. John's East, the member for Edmonton--St. Albert, and the member for Mount Royal,, have engaged in these things in their previous careers. Lawyers and judges of this land find it hard to figure out what a reasonable person ought to be allowed to do, but by the right of sitting on the bench or being called to the bar, we give them that right and then we live by their decision. That is how we have the rule of law.

Ultimately it is about ensuring we find a balance. It gets to the very point of why we need to do it.

We have seen things happen in the past that some of us would say were egregious against those who we see as the victim. People have been assaulted, or mugged, or their houses have been broken into while they were sleeping, as we pointed out in a couple of examples. How do we find a way to say to people that they can protect their property and family if someone comes through the door of their house or steals from them? How do we determine how to do that? That is the balance ultimately all members should try to define.

Members on either side of the House do not want to victimize a victim. That is the essence of what we are saying to Canadians. We understand they have been victimized once already and because of a law we have the powers to change and enact, we do not want to victimize people once more. That is a fair thing to want to achieve.

As my colleague from St. John's East said earlier, the law has been there for over 100 years. It has been debated and decisions have been rendered to help build a body of decisions which the courts and the law profession can look to, to indicate when something is reasonable or not. As the government quite rightly has pointed out, it has been skewed in a few instances where folks are uncertain. If the courts are uncertain, how is the average person who is not in the legal profession supposed to understand what he or she can or cannot do?

If someone came through the door of our house, in a moment of an adrenalin rush we would not necessarily think about what the courts would say, or what the law says, or what section 494(1) says about when someone breaks in to a house. Folks know how to act in a responsible way to deter a person or persons from entering their home and they need to do the things to protect their children, their loved ones and their property. In my case I would have a couple of big dogs outside and I would lock the door. That might be a reasonable enough deterrent to discourage a teenager from breaking in because he or she would not want to be bitten by the dogs.

It may take a physical intervention by the person or persons who would want to restrain the offender. Most of us understand how to act in that moment of what could be described as panic, in a reasonable and responsible way. Ultimately, that is what we are trying to confer with the legislation, but that is why on this side of the House, as my colleague from St. John's East said earlier, we want to send the bill to committee and government members want to do likewise.

At committee we can study and have folks speak to the bill so that when we eventually pass the bill, victims who act, as is their right, as citizens to make an arrest or defend themselves in a legal way, will know that they will not face being charged. That is the balance we are trying to find. I welcome the government taking that opportunity with us to find that balance, because we do not want to have the waters just as muddied as they are now. Even the judicial branch is saying it is not helpful if it is muddied. Heaven knows, if the judicial branch is saying it has difficulties with it, then what are we to make of that. Clearly, as we go down that road, it is important to work to get the legislation right.

I would hope my colleagues on the justice committee would take their time and make sure we actually get it right. In haste, we can get it wrong. We will be doing a disservice to folks in the broader community if we rush it through simply because we think we have it right.

As my friend and colleague from Edmonton—St. Albert said, this is a balance. It is always the most difficult thing to do in life. We all remember when we were young, sitting on a teeter-totter with someone we hoped was of about equal weight or at least who did not get off the teeter-totter before we did, letting us slam to the ground.

One would hope we could find that scale of balance, so that it does not tip in one direction or the other. I know the government wants to find the balance between the rights of those who find themselves in those precarious situations when they are under threat of harm or threat of their personal property being taken from them, and they want to take that opportunity, as is their right under the law even at present, to protect themselves, their loved ones and their property.

Our party's critic has said that we welcome the opportunity to send the bill to committee after second reading, because we believe we can help the government make this good legislation. The Prime Minister has said on numerous occasions, “If you have good ideas, we welcome them”. With this bill, we have some good ideas.

What I am hearing from the government side this morning is that this may be a time when, I would not go so far as to say we would join hands, we find ourselves singing from the same hymn book on this legislation. We will have some good suggestions and we hope the government will be open to those good suggestions. We could eventually find that this is a piece of legislation which members of the House have worked on together and which the House can then pass. We could say to the folks that we worked on this legislation together for all of them because it was important to them.

It may have taken a bit of time for us to get there, as quite often happens. Sometimes we have to build a body of evidence in law and see decisions to finally realize that what we thought was working reasonably well no longer is working. I think the government recognizes that we have come to that point, and I congratulate it for recognizing that.

My colleagues on the justice committee will be pleased with what we heard from the government this morning, that it welcomes the debate, and it welcomes bringing in experts to make sure that we find the balance that all of us are seeking.

This can be a good piece of legislation if we take the time to study it, if we take the opportunity to listen to each other. We need to build a piece of legislation that truly meets the balance of our broader society and the citizens across this country.

[Brad Butt, Conservative, Mississauga—Streetsville, ON]

Mr. Speaker, the official opposition is taking a very reasoned approach on this important bill. Most of us know the history behind the bill, the story of the shopkeeper in the riding of the member for Trinity—Spadina, and what led to where we are today. I am pleased to hear that.

I would like to express my condolences to the member on the loss of his snow blower. I hope he will express his condolences on the loss of my golf clubs, which were stolen out of my garage a few years ago. They had a lot of good shots left in them. I was hoping I would get to enjoy them much more.

The member represents Welland which has a combination of urban areas and a lot of rural areas. Does he see this type of legislation as being beneficial, particularly for people who live in communities underserved by the police, where people may have to take action to protect their own property? Some areas just do not have readily available services to deal with ensuring an individual is held to justice when the individual has committed a property crime or other minor crimes, perhaps on somebody's rural piece of property.

Would the member not agree that this bill is a good step forward to help those residents protect their own property?

[Malcolm Allen, NDP, Welland, ON]

Mr. Speaker, I thank my colleague for his condolences on my snow blower. I am sorry there were good shots left in his golf clubs that disappeared. I am not sure if he slices to the right or hooks to the left with those shots. He is on this side, so maybe it is a hook to the left.

In any case, there is no question that in rural areas there are fewer services. It reminds me of a community where I was a municipal councillor. There was one police car. On any given night, that police car might find its way to Niagara Falls because there was a fight and then we would be left with no police in that community.

Yes, indeed, this might be something of some value. Although the law reasonably protects folks in rural areas if they engage in a citizen's arrest or protect themselves, their family or property from an aggressor, the law was muddy. This is perhaps a way to clarify it.

I would not want the law to be interpreted by folks who live rurally. I must admit I live rurally too. This might give them the sense that they are not being vigilantes. Although I do not believe that is what folks are thinking, it would give them a legal responsibility to act rather than reacting to an aggressive act toward them or their property. They might think that, as there are not many police officers, perhaps they should act on their behalf because they live in an underserved area.

We have to find a balance between folks reacting to an aggressive act toward them or their property and thinking they are the auxiliary police officers when they are not.

[Kevin Lamoureux, Liberal, Winnipeg North, MB]

Mr. Speaker, the principle of citizen's arrest has widespread support. I have found that there seems to be a growing interest and members of our community want to be more engaged. There are law officers who go to local communities and encourage responsible behaviour. This will likely grow, for good reason. I wondering if the member might comment on how citizens are taking more responsibility for personal security issues.

[Malcolm Allen, NDP, Welland, ON]

Mr. Speaker, my colleague is right. It is like going back to the future: community policing happened when I was a kid and police departments now talk about doing that again. They engage their citizens. We used to see officers walking the beat; now we are talking about getting police officers back into the community. That is a good thing.

Engaging communities helps them understand that they have certain rights and responsibilities of citizenship. One of the rights is that if people see a crime being perpetrated, they do not necessarily have to do something. They may have to in extreme cases, but what they ought to do is report it. That is a responsibility of citizenship. People ought to report crimes, not simply turn a blind eye, which we have seen as communities get pushed apart.

The idea of bringing communities together to look after one another is so that the likelihood of crime goes down. Those who want to commit crimes understand that close-knit communities look after themselves. This is not necessarily in a physical way, putting up their dukes and fighting, but looking after each other. When I was not home, my neighbour about a quarter of a mile away could have looked after my snow blower. However, he would have needed really keen eyesight in my particular case.

In communities where people stick together, like in Winnipeg where neighbours are very close to one another, the sense of community building can, indeed, help reduce the incidence of crime. This is a good and positive thing.

[Anne-Marie Day, NDP, Charlesbourg—Haute-Saint-Charles, QC]

Mr. Speaker, the hon. member for Welland might not be a lawyer, but he spoke honestly and sincerely, and I thank him for it.

I remember this incident at the Lucky Moose. The entire country heard about it, from coast to coast to coast. The case involved someone who defended his property, only to be taken to court himself and become the victim.

I asked a question this morning about the word “reasonable”. The member spoke about it at length. Personally, I truly believe that this terms needs to be defined better, since its meaning can sometimes be quite elastic. I would like to hear his thoughts on this, since he seems to be concerned about it too. If we leave the word “reasonable” as is, it could mean one thing to one person and something completely different to someone else. Can the member tell me what effort will be made to try to define and qualify this word better?

[Malcolm Allen, NDP, Welland, ON]

Mr. Speaker, that is the elastic piece in this legislation, without a doubt. I think with all the other pieces we probably are in agreement. The difficulty is with the term “what a reasonable person would do”, which is used quite often.

In fact, in unemployment insurance case law, when we go before the board of referees at the Employment Insurance Commission to defend someone, they will talk about what a reasonable person would do. Even at that level, as much as it is not judicial, they face the same issues.

I think, ultimately, what it is going to take is a good definition. Hopefully, the committee will work hard at this. Otherwise, we are going to turn that term of “reasonableness” over to the courts and they are going to define it for us. If one judge defines it more loosely and one defines it more succinctly and in a more refined way, we will end up back in the Supreme Court with muddied waters again, the very thing we are trying to avoid. What is good law and how can we actually apply it?

I think my colleague is absolutely correct. One could say that the Achilles heel in this bill is the definition of “reasonable”. As this is going to be codified in law, we need to find a way to draw the parameters of the definition, so that we would all agree that is what we want citizens to do, not more than that. We could take the action that the law would allow us to take and people would understand the definition, rather than being at wit's end on either side of the definition of a “reasonable” act.

[Matthew Dubé, NDP, Chambly—Borduas, QC]

Mr. Speaker, the Lucky Moose case is interesting and shocking; however, I must admit that, quite frankly, this bill is the first opportunity I have had to really understand what happened and the problems that Mr. Chen had with the law. Mr. Chen lives in my colleague's riding of Trinity—Spadina. I think that the intentions of the bill that she introduced during the 40th Parliament are more or less identical to those found in Bill C-26, which we are discussing today.

I think there are two important factors to consider. We are talking about the power to make citizen's arrests, as in Mr. Chen's case, but I also think that we have to qualify that. Mr. Chen is the owner of a local business that does not necessarily have the money for insurance or security the way a big business such as McDonald's does.

The members of the NDP—and I am sure the members opposite will agree—believe that this is one very important aspect. We want to give ordinary citizens, particularly entrepreneurs who are at risk of becoming the victims of such crimes, the ability to defend themselves. That is very important. However, there is also another factor to consider, and that is the fact that we all live in a community, we all have the right to protect ourselves—at least we should have it—and we all have the right to help and protect each other.

The hypothetical example that came to mind as I read this bill and thought about it was that of seniors in my riding. There are many seniors in my riding and we know that they need help with many aspects of their daily lives. This is the perfect example because, if a person wants to help someone in need but is not certain of the provisions of the Criminal Code, it becomes very difficult and worrisome for that person to help. We should not have to worry when we find ourselves in a situation where we want to help someone in a reasonable manner, as mentioned in the bill. Once again, the word is “reasonable”, and it is used again and again; I will come back to this point a little later.

I think that is what is important. To go back to what the hon. members for St. John's East and Mount Royal said, we have to truly find a way to create clear legislation when we are talking about citizen's arrest, defence of property and self-defence. As the hon. member for Welland said—it seems we are all essentially in agreement—we want to have clear legislation to ensure that the defender acts swiftly in an urgent and critical situation. We have to avoid the situation where the person wonders what is in subsection 494.2 and how it will affect them. People should have the power to react.

That being said, I think we have been quite clear on this side of the House, that this has to be done within reason. I am not a legal expert, but it is common knowledge that the term “reasonable” is well defined in the legal field. It is everything considered reasonable by any reasonable person. That is usually what it means. Hon. members with law degrees will correct me if I am wrong or add clarification. With a bill like this one, we want to be certain that it not only includes these terms, but that they are understood by the public.

We have a perfect example when we look at the self-defence or defence of property provisions.

I would like to take this opportunity to quote the Supreme Court ruling in R. v. McIntosh, where Chief Justice Lamer said:

...ss. 34 and 35...are highly technical, excessively detailed provisions deserving of much criticism. These provisions overlap, and are internally inconsistent in certain respects.

This is very important because it shows us that even the Supreme Court of Canada justices are unable to fully understand the Criminal Code. Hence, it would certainly not be clear to an individual who is not necessarily a legal expert, especially, as I mentioned, if they were to find themselves in a dire or urgent situation where their life was potentially in danger.

What is being proposed is fairly straightforward and clear. This has been said many times and I will repeat it. We must allow experts, victims and lawyers to thoroughly examine this in committee. I know that most of my hon. colleagues who sit on the Standing Committee on Justice are lawyers or are quite knowledgeable about the law. Like my colleague from Welland, I am very pleased to see that our colleagues opposite feel the same way.

We also want to study this bill because we want to ensure that the bill is clear, not just so we have the right to defend ourselves, as I already mentioned, but also so that we do not get caught up in what I call the “Clint Eastwood phenomenon”, where we all become cowboys acting in self-defence. By defending ourselves, we end up causing more harm than good. We all assume the role of police officers. That would go against what we believe to be the purpose of this bill. Once again, we come back to the term “reasonable”. I believe this concept will be very important.

A few years ago, there were some cases of home invasions in Quebec—in Brossard and Montreal's West Island—that received a great deal of media coverage. In these highly documented and very revolting cases—which sometimes had tragic consequences—there was a great deal of reporting and commentary, by both the media and the public, as to the fact that it was not clear. We must be in a position to fully understand our rights and the restrictions in order not to have to think in such circumstances and to be able to defend ourselves. We also have to agree that, in some cases, we must use some judgment.

Let us take the hypothetical example of a couple. The man pushes the woman and she attacks him very violently, in a way that could be classified as too violent, excessive or unreasonable—to use that term again. However, we do not know the history between them.

We must really take the time to study the bill to ensure that in specific situations, such as ones where there is a known history, measures are in place to ensure that police officers and judges can take adequate and appropriate action.

The work we do in committee is very important. We are talking about experts. I am not a legal expert and many of my colleagues are not, either. That is where our responsibilities as parliamentarians become very important, both during debate in the House and in committee. We must make good use of the resources available to us. Those include not only legal experts, but also victims and people who have experienced serious situations, like Mr. Chen. Although this was a very high profile and surprising case, there must certainly be other circumstances that are similar.

I must talk about another aspect. I mentioned seniors, but there are other groups too.

I am not entirely familiar with Mr. Chen's case, so I will be careful about what I say. In his case, there was some racial profiling, as happens in other ethnic communities.

Mr. Chen belongs to an ethnic community and he was charged with kidnapping, when in reality, he was simply defending his business. Making the bill more specific gives police officers tools so that they will be less likely to judge or accuse people who act in this manner.

I find it unfortunate to have to raise the next point, but since my colleague from Welland already did, I would like to take the opportunity to do so now. Since the beginning of this parliamentary session, work in committee has been very rushed, as have our debates in the House of Commons. That is too bad, since we talk about the bills.

Let us take the example of Bill C-10, which has to do with the Criminal Code. There is no doubt that this is a very complex issue.

We should have been taking advantage of these opportunities, both in the House and in committee, and deferring to the expertise and wisdom of our colleagues. As we all know, the hon. member for Mount Royal is very knowledgeable in this area, as are many other members. We should be taking advantage of our colleague's knowledge in order to fine-tune this very complex matter. Indeed, the Criminal Code is very complex. It is full of nuances that we need to pay attention to. That is what we are looking for.

The NDP's position is very clear: we want to find the nuances. We want to defend victims, but we also want to ensure that the measures are reasonable in that regard. That is where the nuances become important.

In the clauses of the bill, some examples talk about timeframes. In the case of Mr. Chen, the time that passed between when the crime was committed and the citizen's arrest was too long.

We need to have some degree of flexibility. However, we must also ensure that if a business owner thinks he or she recognizes someone who committed a crime 10 years ago—someone who stole candy in a corner store, for instance—that individual cannot be arrested. Business owners are vital to the local economy and must be able to defend themselves.

As MPs, we all go through these kinds of situations. My colleague's riding of Welland is half urban and half rural. Earlier he talked about cuts to police services. We have to remember that rural areas are not the only areas with more limited services. My riding is considered to be located primarily in the suburbs, and we are experience the same thing. In some cases, different municipalities are even sharing police officers. The municipalities do not necessarily have the same resources, so they are sharing them in order to provide better services.

That happens in some cases, but in others, when something is considered more urgent, the police forces focus on that, and rightly so.

At other times, there is no chance to benefit from these advantages. I can think of a few examples, such as petty thefts committed in small, local businesses.

In those cases, the response time can be quite long, at least in my experience and in others' experiences. That is where the problem lies.

Given that our police officers work very hard and do not necessarily have the resources to do everything they would like to do, we all have to help each other.

I also mentioned that we have to be careful that we do not all become police officers. We have to consider other aspects, including students who work part-time at a store to pay for school.

If a thief enters the store, public pressure—if I can use that expression—should not make the clerk feel forced to intervene.

Although we have the right to make a citizen's arrest, we also have the right to protect ourselves and to not necessarily intervene in a potentially dangerous situation.

To come back to this example, pressure might come from colleagues who feel pressured by the boss. The legislation should not be drafted in a way that a person feels pressured by his or her boss, a store owner for example, to intervene at all costs. That would not be appropriate.

As I was saying earlier, this would cause more harm than good in some circumstances. It is not worth risking one's life for a petty theft. Everyone agrees that life is priceless.

What is more, we must not lose sight of the fact that many situations are hypothetical. That is the problem. Not all of us have experienced what Mr. Chen went through, but the important thing is peace of mind, as I was saying earlier. We all share the desire to live free from such concerns in our communities.

I want to mention the Supreme Court's decision once again. There was also a problem in that case. However, cases involving a citizen's arrest are usually much more straightforward. If someone is caught in the act of stealing from a corner store, the case is fairly black and white. The person was apprehended while actually committing a crime.

Cases involving self-defence are harder to judge. Earlier, I mentioned cases in which we are less aware of the previous history.

The way in which the incident is reported to the police is also important. To use an example that is something of a cliché, a person who is in a dangerous neighbourhood or an area that is less safe gets attacked. That person would then exercise his right to self-defence.

He may defend himself and then run away. He calls the police because, clearly, he would not wait there with the attacker against whom he just defended himself. Clearly, he had to run away and think about his own safety.

Later, depending on how the facts are reported, the police will have to use a certain amount of judgment, and they are very qualified to do just that.

However, our responsibility as parliamentarians is to provide the tools need by both the police and judges—when the time comes—to exercise that judgment.

It is thus very important to work together to ensure that all the nuances are clearly understood. Together, we can come up with a very good bill.

[Harold Albrecht, Conservative, Kitchener—Conestoga, ON]

Mr. Speaker, my colleague highlighted the fact that the situation of Mr. Chen probably brought this to our attention more dramatically perhaps than others. However, I think the member would agree, as my colleague would agree, that this is certainly not the first time there has been controversy around the issue of citizen's arrest.

My colleague points out, rightly, that it is important this place and committees take time to study the bill carefully to ensure we get it right. My colleague has said that it is important we hear from more people like Mr. Chen. It is also important we hear from people who may have been faced with a similar situation, but perhaps did not act out of fear that the law would not stand behind them, as well as from those who may have acted and found themselves unbelievably on the wrong side of the law having taken some actions to protect their property.

If we will be hearing from more people like Mr. Chen, would my colleague agree that it is important to also hear from those who may have experienced loss of property through a criminal offence that may never have gone reported?

[Matthew Dubé, NDP, Chambly—Borduas, QC]

Mr. Speaker, I would like to thank the hon. member for his question and comments. I completely agree that we must hear from people with a variety of perspectives. In my speech, I talked a lot about hearing from legal experts but we could also hear from victims who took action. As the hon. member pointed out, we could also hear from victims who did not take action because they were afraid of breaking the law, which is why it is important to carefully examine the nuances and how they are perceived by the public. That is very important.

If we find ourselves in the same situation as certain victims have, we should not have to think about the law. The law should be designed to protect everyone: victims who choose to act and those who choose not to. It is an excellent idea to gather all these comments. That is exactly how we on this side of the House would like to proceed, and I am certain that the members opposite will agree.

[Kevin Lamoureux, Liberal, Winnipeg North, MB]

Mr. Speaker, I was encouraged by the question from the member of the Conservative Party. It is always nice when a member stands and indicates that he or she would like to get feedback to get a better understanding.

However, I think most members in the chamber would recognize that the principle of the bill is very supportive. There are some questions and maybe some concerns that need to be dealt with. We need to open up the system in a way in which we can have people come to committee to share their stories and allow them to express their concerns. As I will be the next one up to speak, I will get the chance to share a couple of stories. However, by listening to what the average Canadian has to say on issues such as this, we might be able to ensure we pass the right bill to address the concerns that everyday Canadians have on this issue.

Is that a fair comment?

[Matthew Dubé, NDP, Chambly—Borduas, QC]

I would like to thank the hon. member for his comments, which are very fair. If the issue the bill addresses is so complex, it is because there seem to be nuances in every case. Each case has a certain complexity. No two cases are identical. If every member of the House were given the opportunity to speak about this bill, we could hear hundreds and even thousands of different stories.

That is why it is very important to hear from as many people as possible within the specified time period. It is very important to hear from all the parties, to hear the comments of both academic legal experts and ordinary citizens, and to give the people we represent here in the House a chance to be heard.

In this way, Bill C-26 will enable us to live in a society where we are safe, and where we can protect ourselves but do not take the law into our own hands by deciding to act like police officers. The goal is to make our communities safe and we want to work together to achieve that goal.

[Pierre-Luc Dusseault, NDP, Sherbrooke, QC]

Mr. Speaker, I have a question for my NDP colleague. He talked about the word “reasonable” a number of times. He said that this word is often used in court rulings. When used outside a legal context, the word “reasonable” is rather vague. Case law gives us a somewhat better idea of its meaning.

The term “reasonable” is used in section 34. This section deals with self-defence and sets out the factors that a court may consider in paragraphs (a) through (h). In the section dealing with defence of property, this term is used only in paragraph (d), which states, “the act committed is reasonable in the circumstances.”

Could the term “reasonable” be defined a bit more clearly in the section on defence of property?