House of Commons Hansard #58 of the 41st Parliament, 1st Session. (The original version is on Parliament's site.) The word of the day was arrest.
Government Response to PetitionsRoutine Proceedings
Regina—Lumsden—Lake Centre Saskatchewan
Conservative
Tom Lukiwski ConservativeParliamentary Secretary to the Leader of the Government in the House of Commons
Mr. Speaker, pursuant to Standing Order 36(8) I have the honour to table, in both official languages, the government's response to one petition.
Randy Hoback Conservative Prince Albert, SK
Mr. Speaker, pursuant to Standing Order 34(1) I have the honour to present to the House, in both official languages, the report of the Canadian parliamentary delegation of the Canadian Section of ParlAmericas respecting its participation in the 41st regular session of the OAS General Assembly held in El Salvador from June 5 to 7, 2011.
Aboriginal Affairs and Northern DevelopmentCommittees of the HouseRoutine Proceedings
Conservative
Chris Warkentin Conservative Peace River, AB
Mr. Speaker, I have the honour to present, in both official languages, the first report of the Standing Committee on Aboriginal Affairs and Northern Development entitled “Supplementary Estimates (B), 2011-12”.
Libby Davies NDP Vancouver East, BC
moved for leave to introduce Bill C-374, An Act to amend the Bills of Exchange Act (rights of bill holders).
Mr. Speaker, I thank the member for Welland for seconding my bill today. I am very pleased to rise in the House to present it.
The bill is a little complicated and hard to explain but it is actually a very simple issue. It springs from a flaw in the Bills of Exchange Act, which is federal legislation governing financial transactions that dates back to the 1890s. The purpose of my bill is to prevent the cashing of cheques by a cheque-cashing business when the cheque has been cancelled by the person who wrote it. I know that sounds a bit convoluted but I will explain it.
This would apply, for example, to people who have hired someone to do work on their house, realize there are complaints of fraud, cancel their cheque and then the person who was doing the work goes to a Money Mart or a cheque-cashing business and cashes the cheque. When the cheque-cashing business realizes that there was a stop payment on the cheque, it goes to the homeowner to collect, even though homeowner did the proper thing. In dealing with cases in Vancouver, I found out there were dozens and dozens of cases where Money Mart had actually sued the homeowners for doing the right thing and putting a stop payment on the cheque when they realized there were improper things going on and yet cheque-cashing businesses went after the homeowners.
This bill would simply correct that. It is something that dates back to the 1890s. We need to ensure there is consumer protection when people have shown due diligence. The purpose of this bill is to ensure that cheque-cashing companies also show due diligence in terms of how they conduct their transactions.
I hope that makes sense. Once people understand it, they realize it is very common and we need to take action on it. I hope members of the House will support the bill.
(Motions deemed adopted, bill read the first time and printed)
Harold Albrecht Conservative Kitchener—Conestoga, ON
moved for leave to introduce Bill S-206, An Act respecting World Autism Awareness Day.
Mr. Speaker, I rise today to introduce Bill S-206, an act respecting world autism awareness day.
I think all of us in the House have met or have had personal contact with those who are struggling with autism. We are very much aware of our colleague, the member for Edmonton—Mill Woods—Beaumont, who has done such an incredible job of raising the awareness, understanding, acceptance and desire to help people and families struggling with autism. I am continually amazed at the perseverance and tenacity demonstrated by every family and community that has to deal with autism on a daily basis.
We need to do all we can to raise awareness, to work toward effective solutions and to finding ways to support them.
(Motion agreed to and bill read the first time)
LaVar Payne Conservative Medicine Hat, AB
Mr. Speaker, it is a pleasure to stand and present a petition from people right across Canada calling for the de-funding of the Canadian Broadcasting Corporation.
The petitioners want to ensure that the government is aware that the sum of $1.1 billion given by the Government of Canada to CBC does present an unfair advantage to CBC over its competition in the private sector.
Therefore, these petitioners call upon Parliament to end the public funding of the Canadian Broadcasting Corporation.
Libby Davies NDP Vancouver East, BC
Mr. Speaker, I have the pleasure to introduce a petition signed by residents in metro Vancouver. It concerns the Falun Gong, which is an organization and a practice we are all familiar with, which is the peaceful and beneficial spiritual practice centred on the principles of truth, compassion and forbearance.
The petition draws to our attention the persecution of these practices and people in China and calls on the government to use every possible channel to call for an end to the persecution of Falun Gong, especially at meetings with Chinese leaders and at international forums, and to help rescue 12 family members of Canadian residents who are incarcerated for their belief in Falun Gong in China.
Judy Foote Liberal Random—Burin—St. George's, NL
Mr. Speaker, I rise with pleasure to present a petition on behalf of constituents in the riding of Random—Burin—St. George's for the continued funding for the CBC.
In line with the number of “whereas” clauses giving reasons for their support, the petitioners call on the Government of Canada to maintain stable and predictable long-term core funding to the public broadcaster, including CBC Radio and Radio-Canada in support of their unique and crucial roles.
I could speak to the importance of CBC, particularly as a former employee, but, as well, because of the relevance of the programs, programs such as the Fisheries Broadcast which is heard throughout Newfoundland and Labrador, particularly in rural communities. In some cases, it is the program that connect fishers from one part of Newfoundland and Labrador to the other.
In terms of the importance of CBC and the programs that it offers, I concur with the signatories to this petition and call on the government to recognize the importance of the CBC to Canadians from coast to coast to coast.
Jack Harris NDP St. John's East, NL
Mr. Speaker, I have the honour of presenting a petition from a number of my constituents in St. John's East and in other parts of Newfoundland and Labrador, including from the riding of the member for Random—Burin—St. George's, calling on the government to reinstate and change the decision to close the marine rescue coordination centre in St. John's, Newfoundland and Labrador. This Newfoundland and Labrador region has the highest proportion of distress incidents in Canada, responding to an average of 500 incidents a year, involving 2,900 people and saving the lives of some 600 people in distress at sea each year.
This centre is responsible for 900,000 square kilometres of ocean. The staff there have a unique knowledge of that area of ocean and coastline, as well as the people who work on the oceans, fishers, boaters and other workers.
It is very important that this be maintained. The petitioners are calling on the government to do that.
Questions Passed as Orders for ReturnsRoutine Proceedings
Regina—Lumsden—Lake Centre Saskatchewan
Conservative
Tom Lukiwski ConservativeParliamentary Secretary to the Leader of the Government in the House of Commons
Mr. Speaker, if Question No. 182 could be made an order for return, this return would be tabled immediately.
Question No. 182Questions Passed as Orders for ReturnsRoutine Proceedings
December 1st, 2011 / 10:10 a.m.
Liberal
Ted Hsu Liberal Kingston and the Islands, ON
With regard to the new vaccine research facility at the University of Saskatchewan: (a) what is the exact cost for constructing this facility; (b) how much money is the federal government pledging to assist in the construction of this facility; (c) what department(s)are responsible for overseeing and managing the construction of this facility; (d) what ministry or ministries will be responsible for allocating funds towards this facility; (e) what is the estimated cost of maintaining and running this facility on a yearly basis; (f) what, if any, of this cost will be borne by the federal government?
(Return tabled)
Tom Lukiwski Conservative Regina—Lumsden—Lake Centre, SK
Mr. Speaker, I ask that the remaining questions be allowed to stand.
Gerry Ritz Conservative Battlefords—Lloydminster, SK
moved that Bill C-26, An Act to amend the Criminal Code (citizen's arrest and the defences of property and persons), be read the second time and referred to a committee.
Citizen's Arrest and Self-defence ActGovernment Orders
Moncton—Riverview—Dieppe New Brunswick
Conservative
Robert Goguen ConservativeParliamentary Secretary to the Minister of Justice
Madam Speaker, I am pleased to lead off the debate on Bill C-26, An Act to amend the Criminal Code (citizen's arrest and the defences of property and persons). Bill C-26 was first introduced in the last Parliament as Bill C-60. The bill is a responsible expansion of the citizen's power of arrest and also includes a long overdue simplification and clarification of the law on self-defence and defence of property.
Prior to the introduction of former Bill C-60, the issue of citizen's arrest had been subject to two private member's bills and numerous discussions in parliaments, newspaper and, no doubt, in coffee shops across the country. So the straightforward reform proposed for the law of citizen's arrest in the bill is well understood and well supported by all parties. I will speak to it only briefly today.
The proposed reforms to the defences of property and persons have different histories and goals. Some members were surprised by the inclusion of these reforms in Bill C-60 when it was introduced. I would like to start by explaining why these reforms were presented together.
While defence of property and the power to make a citizen's arrest are separate legal concepts, in the real world, these concepts can sometimes overlap. For example, imagine a security guard who discovers an intruder in a building who is heading to the door with a laptop in hand. The security guard can apprehend the thief and then call police so that the thief can be charged. That is an example of a citizen's arrest. That is the typical situation in which citizens make the arrest themselves and then call the authorities.
In this emergency situation, the law authorizes the security guard to make the arrest, in the place of the police, but the security guard could also use a minimal amount of force against the thief. For example, the guard could grab the thief's arm while trying to grab the laptop. Because the intent is different, this action could be considered defence of property—the laptop, in this case. If the thief resisted or responded with force, it would be a matter of self-defence if the guard had to defend himself.
While there are three distinct legal mechanisms, they are all directly relevant to the broader question of how citizens can lawfully respond when faced with urgent and unlawful threats to their property, to themselves and to others.
Our government recognizes that all of these laws, any one of which may be pertinent to a given case, must be clear, flexible and provide the right balance between self-help and the resort to the police. That is why all these measures are joined together in Bill C-26.
I will now to turn to a brief description of the proposed citizen's arrest reforms and to devote the rest of my time to the reform of the defences.
On the question of a citizen's arrest, no one can dispute the fact that arrests are primarily the responsibility of the police. This will remain their responsibility and there is no change in that regard. However, in recognition of the fact that the police are not always present when a crime is committed, the Criminal Code has long authorized citizens to arrest other citizens in narrowly defined situations, including where an offence is committed on or in relation to property.
Section 494(2) of the Criminal Code currently allows for an arrest only where a person is found committing an offence. That said, there have been occasions recently where a citizen effected an arrest a short while after the crime was committed because that was when the opportunity arose. These cases have raised questions about whether the scope of the existing arrest power is appropriate.
Our government believes that it is reasonable to extend the period of time allowed for making a citizen's arrest by allowing arrest within a reasonable time after the offence is committed.
To discourage vigilantism and to ensure that citizens only use a slightly expanded power of arrest in cases of true urgency, Bill C-26 also includes a requirement that the arresting person reasonably believes that it is not feasible in the circumstances for a peace officer to make the arrest. These are reasonable and responsible reforms and all members are urged to support them.
Although our citizen's arrest reforms are rather simple, the changes that they will mean for defence of the person and defence of property need more detailed explanations.
The provisions on defence of the person and defence of property, as they are currently written, are complex and ambiguous. Existing laws on self-defence, in particular, have been the subject of decades of criticism by the judiciary, including the Supreme Court of Canada, as well as lawyers, academics, lawyers' associations and law reform organizations. Much of the criticism has to do with the fact that the existing law is vague and hard to enforce. It is fair to say that reform in this area is long overdue.
These kinds of defence were included in the very first Criminal Code. The wording of this part of the legislation has remained very similar since the original Criminal Code was written in 1892. Defence of property was covered in nine separate provisions containing a number of subcategories and other very complex provisions that have become obsolete and unnecessary.
Professor Don Stuart of Queen's University, whose textbooks on criminal law are widely used by first year law students in this country, has written:
The defences of person and property in Canadian law are bedeviled by excessively complex and sometimes obtuse Code provisions.
It is important to be clear, however, that the criticisms of the law do not pertain to its substance but rather to how it is drafted. Self-defence and defence of property are and have always been robust in Canada. There has been a lot written in newspapers about the right to self-defence and protection of one's property, some of which suggests that these rights have been diminished or are inadequately protected. This is untrue. The law is robust, despite the fact that the rules as written in the Criminal Code suffer from serious defects, and despite the way the media have portrayed these issues in recent times.
Parliament has a duty to ensure that laws are clear and accessible to Canadians, criminal justice participants and even the media. That is exactly what we are proposing to do in Bill C-26, even though the actual rights of Canadians are robust and upheld in Canadian courts on a daily basis. When the laws which set out these rules are confusing, we fail in our responsibility to adequately inform Canadians of their rights. Obviously, unclear laws can also complicate or frustrate the charging provisions of the police who themselves may have difficulty in reading the Criminal Code and understanding what is and is not permitted. Bill C-26 therefore proposes to replace the existing Criminal Code provisions in this area with clear, simple provisions that would maintain the same level of protection as the existing laws but also meet the needs of Canadians today.
How are we proposing to do this? I will start with the defence of the person because it arises more frequently than does the defence of property, because calls for reform have focused on this defence, and because of the fundamental importance of the right of self-preservation in Canadian criminal law.
If we were to ask ordinary Canadians if they think self-defence is acceptable, they would say that it is acceptable when their physical integrity or that of another person is threatened. I think they would also say that the amount of force used should be reasonable and should be a direct response to the threat.
The reforms proposed in Bill C-26 are centred on those basic elements. Because of the general nature of these ideas, one law based on these fundamental principles should be able to regulate all situations that arise involving defence of the person. We simply do not need different regulations for every set of circumstances. All we need is a single principle that can be applied to all situations.
Under the new defence, a person would be protected from criminal responsibility if there are three conditions which are met: one, the person reasonably believes that he or she or another person is being threatened with force; two, the person acts for the purpose of defending himself or herself or another person from that force; and three, the person's actions are reasonable in the circumstances. Let me clarify a few salient points.
First, unlike the current law which creates different defences for different circumstances, the new law would cover both self-defence and defence of another. The same criteria govern defensive action in both situations.
Second, with regard to the defender's perception of threat to himself or herself or another, members should know that a person is entitled to be mistaken about his or her perception, as long as his or her mistake is reasonable. For instance, if a drunken neighbour walks into the wrong house at 3 a.m., the homeowner may well be reasonable in perceiving a threat to himself and his family, even though there was in actual fact no threat at all, just a tired, drunken neighbour in the wrong house.
The law must still allow people to use defensive force where they make a mistake that any reasonable person could make. Unreasonable mistakes, however, are not permitted. If a person seeks to be excused for the commission of what would otherwise be a criminal offence, the law expects the person to behave reasonably, including in the person's assessment of threats to himself or herself, or others.
Third, the defender's purpose is paramount. If a person acts for the purpose of defending himself or herself or another, the defence is available. Defensive force cannot be available as a disguise for what is actually revenge. Conduct for any purpose other than protection falls outside the bounds of defensive action and the person stands to be convicted for it.
Fourth, if the other conditions are met, then the defender's actions must be reasonable in the circumstances. What is considered reasonable in the circumstances depends entirely on the circumstances of each specific case, as assessed by the reasonable person test. The question is: would any reasonable person in the defender's situation have done what the defender did? There is not just one reasonable response for every situation. The important thing to know is that the defender behaved in a way that the judge considers reasonable in those particular circumstances.
The list of factors that may be relevant in determining whether the act of defence was reasonable is far too long to be included in the Criminal Code. Nonetheless, to facilitate the deliberation process, without limiting the nature and scope of the factors that could be taken into consideration, the proposed reform provides a list of well-recognized features of many self-defence situations presented before our courts. This list will guide judges and juries in their application of the new legislation, and confirms that current case law on self-defence continues to be applicable.
Factors that are on the list and likely to be relevant include the nature of the threat and the response to it. For instance, was the attacker threatening to break a finger or to kill? Another factor is whether weapons were present. Another factor is the relative physical abilities of the parties, such as their age, size and gender. Naturally, a petite, elderly woman and a fit, young man may have different options available to respond to the same threat. Another factor is whether there were any pre-existing relationships between the parties, including any history of violence and abuse.
This last factor is particularly important in cases where a battered spouse must defend against an abusive partner. As the Supreme Court has noted in the landmark case of Lavallee, it is sometimes difficult for a jury of citizens to understand how a battered spouse might stay in an abusive relationship or how the person might come to understand the patterns of violence of the person's partner. These cases do not arise often but when they do, sensitivity to these factors is crucial.
The reasonableness of the response must take into account the nature of the relationship and the history between the parties in arriving at a just result.
The proposed law would establish a simple and meaningful framework for decision-making. The relevant facts must be determined first, and then the rule can be applied. Police and prosecutors, in assessing whether a charge should be laid, should gather all the facts and then assess them against the criteria set out in the defence to determine whether there is a reasonable prospect of conviction and whether charges are in the public interest. If charges are laid and the defence is advanced, the trier of fact will be asked to determine, based on his or her assessment of the facts presented at trial and his or her own experience and common sense, whether the actions taken were reasonable in response to the threat.
I want to bring one small change to the attention of the hon. members. The use of force is permitted under current legislation only in the defence of a person. Essentially, violent behaviour against the attacker is permitted in the defence. Bill C-26 broadens the defence in order to recognize the fact that in emergency situations, a person might use other forms of behaviour in self-defence such as breaking and entering into a building to seek refuge or even stealing a car in order to flee.
In parallel to the changes to the self-defence provisions, Bill C-26 would replace all the existing provisions for defence of property with one single criterion. It encompasses these essential components and maintains the same level of protection as under the current legislation.
There are three primary conditions to the proposed defence. First, the defender must reasonably perceive that someone else is about to or has just done one of the following things: enter property without being legally entitled to, or take, damage or destroy property. Second, the defender must act for the purpose of preventing or stopping the interference with property. Third, the actions taken must be reasonable in the circumstances.
As with the case of defence of the person, a person can make a reasonable mistake about a threat or interference with property and still have access to the defence. The defender's purpose must be defensive. Defence of the property is not a disguise for revenge. The overarching question for the trier of facts will be whether the actions taken by the defender were reasonable in the circumstances.
It is also imperative to appreciate the defence of property is different from and more complicated than the defence of the person in one important respect. Every person has the right to decide who can touch him or her and how he or she wishes to be touched, and it is very clear when the trigger of non-consensual threat to bodily integrity arises.
Property is very different from the human body in this respect. There can be overlapping interests in the same piece of property which can lead to disputes as to the degree and nature of those interests. Therefore, the defence of property must be guided by the realities of property law in addition to its other basic conditions.
The result as far as the criminal law is concerned is that the defence of property has an additional pre-condition; namely, that the person who claims the defence must have been in peaceable possession of the property at the time of the interference.
The concept of peaceable possession of property is present in the current law and is included in these reforms. This term has been interpreted by our courts to mean that the person must be in actual physical possession of, or in control over, the property at the time of the threat or interference, and that the possession itself must be unlikely to lead to a breach of the peace and is not contested by others. This is the way in which possession must be peaceable; it must not be contested or risk violence or public disorder.
For instance, protesters occupying a government building and criminals who are safeguarding stolen goods are not in peaceable possession of property, and therefore they cannot benefit from the defence if someone else tries to take or enter property.
Law-abiding citizens going about their business, on the other hand, will almost certainly be in peaceable possession of their property. If they reasonably believe that someone is threatening their possession, for instance, a thief is trying to pick their pocket or an intruder is trying to break into their house in the middle of the night, and if they act for the purpose of protecting the property from that threat, they will be excused from criminal responsibility for any actions they take that are reasonable in the circumstances.
We can see why threats to ownership rights do not justify responsive actions that might otherwise be criminal. Ownership and many other legal interests in property are matters of property law, and must be decided by the civil courts if the parties cannot agree among themselves.
Only actual real-time threats to physical possession of property allow a person to respond in a way that would otherwise be criminal. The overarching function of the criminal law is to promote public order and public peace. The law therefore cannot sanction the use of force to protect property in any circumstances other than where a present lawful situation is threatened in a manner such that seeking civil recourse at some later date creates the risk of permanent deprivation of property.
The law allows people to preserve the status quo, not to solve ongoing disputes with violence.
In closing, I invite all hon. members to support this bill. These changes are long awaited and are a reasoned and measured response to very complex legal situations.
Anne-Marie Day NDP Charlesbourg—Haute-Saint-Charles, QC
Madam Speaker, I thank the member for his speech.
He spoke about replacing the existing law with clear and precise provisions, or provisions that have been made clearer. He also spoke about the possibility of detaining a person for a so-called reasonable period of time. I find the term “reasonable” to be elastic. It is far from clear and precise. It is used several times in the text. For example, we might consider one day in jail to be appropriate whereas someone else might think that three days in jail would be appropriate in the same situation.
Could the member clarify and explain what he means by “reasonable”?
Robert Goguen Conservative Moncton—Riverview—Dieppe, NB
Madam Speaker, what is reasonable in any context depends on a number of factors. When a citizen's arrest is made, the citizen's responsibility remains to immediately turn over the person detained to the authorities. The law has not been thrown out. When an arrest is made, the citizen must turn the person detained over to the police right away. If they are in a remote area and cannot contact the police or the police must travel a much greater distance to pick up the accused, then circumstances will naturally dictate when this happens. However, the objective is to immediately turn the person over to the authorities, if possible.
Brian Jean Conservative Fort McMurray—Athabasca, AB
Madam Speaker, I appreciate the opportunity to ask a question, which is in relation to what has happened in the past in some areas across the country.
For instance, one particular incident which took place was that a person's home was continuously broken into. Finally, that person put up traps. He set up a shotgun, so that when the intruders came across and through the window, it would do what he intended to do, which was to repel the people who continuously broke into his home.
I am wondering if this would deal with that kind of situation, where a person was not home at the time of the incident but used force that, in my mind, would be beyond what would be reasonable to repel intruders from entering personal property.
Would the hon. member be able to answer that question for me, please?
Robert Goguen Conservative Moncton—Riverview—Dieppe, NB
Madam Speaker, that question is certainly very relevant. It is a good example of how the application of force of that nature would probably be ruled to be excessive and beyond the scope of what might be reasonable. Obviously, setting off a shotgun to deter criminals is far excessive to perhaps setting up an alarm system, which might otherwise alert the police authorities and have them respond immediately.
The intent of the law is to always give the police authorities the first obligation to respond, then to permit citizens to respond to situations wherein police cannot respond, and to of course only use what is considered reasonable force to protect themselves or their property.
Jack Harris NDP St. John's East, NL
Madam Speaker, I wonder if the parliamentary secretary would agree with me that the whole issue of self-defence and defence of property, although it has been said to be complex, has been part of common law since as far back as the 1100s, I am told. I was not around at the time, but that is what I have heard said. As well, it has been codified since 1892 in Canada.
As a result of being codified, there is a tremendous number of case law. It may be complex, but would the member agree that we have to be very careful when we start changing the law? We are getting rid of eight sections and changing it to two. We must carefully examine the consequences of the different wording that is being used.
For example, “proportionality” is talked about under defence of person but not under defence of property. We do have occurrences such as the member for Fort McMurray—Athabasca mentioned, where people assume that because they have the right to use force in defence of property, they can therefore set a trap that might kill someone. We are dealing with an area of the law wherein we have to be extremely careful.
Would the member agree with that?
Robert Goguen Conservative Moncton—Riverview—Dieppe, NB
Madam Speaker, I would take no issue with the hon. member's comment. It is a matter of proportion and reason.
In essence, what the law proposes to do is make the ground rules clearer. The issue arises only in situations of emergency. We cannot expect people to always react in the same way. However, there has to be a framework in society of exactly what is reasonable for public order, not excessive but what is reasonable, for ordinary citizens who are not used to reacting in emergency situations in the manner that trained officials are.
Therefore, I would agree that there must be a framework that is reasonable. Otherwise, it could create public disorder. That is certainly not what is sought.