Debates of March 7th, 2011

Citizen's Arrest and Self-defence Act

[Kevin Lamoureux, Liberal, Winnipeg North, MB]

Mr. Speaker, one of the nice things about the chamber is the ability to get unanimous consent. If in fact the chamber and the Conservatives at any point in time saw the value of that bill and wanted to pick up on the issue, they would have been able to approach the Liberal Party, and vice-versa, the Liberal Party could have approached other members. It is up to the chamber to look for unanimous consent to bring forward a good idea.

At the end of the day, what I know is it would have been wonderful to have seen that bill passed. If the government knew it would bring in legislation of this nature, why would it not approach the Liberal Party and say that it liked the bill, that it would like to see some amendments to it, but it would work with the bill so it could be brought forward to the House? With the unanimous support of the House, it could have been debated back in June, passed and some Conservative amendments could have been made to it. Members of the Liberal Party are very open-minded in having good ideas brought forward, passed and turned into law.

[Bob Dechert, Conservative, Parliamentary Secretary to the Minister of Justice]

Mr. Speaker, I am pleased to speak today on Bill C-60, An Act to amend the Criminal Code, which addresses the issues of citizen's arrest, defence of property and defence of persons.

I would like to begin by addressing the reforms to the law of self-defence and defence of property. Defences arise when a person is alleged to have committed a criminal offence. The availability of a defence means that, although a person did commit an act that would otherwise be a crime, he or she should not be convicted for it because of some other circumstance amounting to a defence at law. If a person is defending themself from an attack or defending their property from being stolen, they might need to behave in a way that would normally attract criminal responsibility, such as an assault against the person threatening them. The defences are the law's way of balancing the generally applicable offences with exceptional circumstances that can validate the commission of crimes.

In the McIntosh case in 1995, the Supreme Court of Canada issued a very stark assessment of the law of self-defence. Here is what former Chief Justice Antonio Lamer had to say:

I would observe that ss. 34 and 35 of the Criminal Code are highly technical, excessively detailed provisions deserving of much criticism. These provisions overlap, and are internally inconsistent in certain respects.... It is to be expected that trial judges may encounter difficulties in explaining the provisions to a jury, and that jurors may find them confusing.

Chief Justice Lamer went on to say:

I am of the view that any interpretation which attempts to make sense of the provisions will have some undesirable or illogical results. It is clear that legislative action is required to clarify the Criminal Code’s self-defence regime.

Confusing law is not just a matter of passing concern; when laws are difficult to understand, there are real consequences. People will not be able to read the law and understand the rules that govern their conduct; and police will have a difficult time assessing whether a person has a valid defence for the conduct and may end up laying charges just to be on the safe side, in the hope that the court will sort out the confusion.

I have spoken with dozens of police officers who have told me that this is exactly what they do. I believe that this is probably what happened in the case of Mr. Chen. The police were faced with a series of confusing provisions in the Criminal Code. Their duty is to uphold the law, and so their duty is to lay a charge and seek the court's determination. That is what they did in this case.

That is why these types of cases and these provisions in the Criminal Code really require very close scrutiny, and that is what Bill C-60 is intended to do.

Prosecutors and defence counsel will spend considerable time making arguments about the meaning and the scope of the law; courts will have tremendous difficulty explaining the law to juries; juries will be asked to apply laws that even lawyers and judges do not fully understand; and even if the jury comes to the right conclusion, there are likely to be grounds for the losing party to appeal, causing delay in the final resolution of the outcome for the person charged, and the cost to the justice system will be significant and unnecessary.

We are right to be concerned about confusing laws. It is Parliament's duty to ensure that the law is accessible and clear to all Canadians. The time has come to do so in regard to these provisions.

When we looked at these provisions, we realized that there were nine provisions in the Criminal Code that were very confusing and, in some ways, contradictory. And when we looked further into it, we realized that these provisions of the Criminal Code had not actually been substantially revised since 1960. Thus it was the right time to do so.

The case of Mr. Chen was certainly a catalyst for change and gave rise to an opportunity for us to examine these provisions. However, when we actually sat down and spoke to shop owners, and here I hope that the member for Winnipeg North who spoke previously had an opportunity to do so in his city, we came to the conclusion that there was a lot more that needed to be fixed than just the timing of the citizen's arrest provision.

Prior to and after the Supreme Court of Canada's pronouncements in the McIntosh case, there were numerous attempts to reform the law.

First, the former Law Reform Commission of Canada proposed in 1987 a re-codified general part of the Criminal Code, the part that contains many general rules, such as the defences and rules surrounding participation in crime. This report included a reformed law of self-defence and defence of property.

The Canadian Bar Association also produced a report in 1992 for a reformed general part of the code and proposed a slightly different, but vastly simpler, defence of the person and defence of property.

Around the same time, the Department of Justice issued a white paper that was a draft of a new general part of the Criminal Code. It included yet another version of a simplified defence for self-defence and defence of person.

Again in 1998, the Department of Justice consulted with Canadians on various ways in which the defences could be simplified and clarified. However, law reform never came until now.

Bill C-60 presents the first legislative response in many decades to the confusing law on self-defence and defence of property. In a nutshell, the legislation seeks to simplify both defences in order to provide clear guidance to Canadians about what they can do in an emergency situation where they are forced by a threat to themselves or their property.

Simpler laws will provide better guidance to police officers who are called to the scene of a crime, who will, as a result, be better able to make appropriate decisions about whether charges are warranted or not. Simpler laws will also allow courts to instruct juries in a sensible manner. This will reduce successful appeals and retrials, saving the justice system unnecessary time and expense.

The proposed new law of self-defence will boil down to a few simple considerations: did the person reasonably perceive that they or another person was being threatened with force, or were they actually being assaulted; did they respond for the purpose of protecting themselves or the other person from that force; did they act reasonably in the circumstances?

These are the key components that permit a person to do what would otherwise be criminal, whether it be using force against force, or doing something else such as breaking into a property to escape an attacker. These components are very similar to those that are currently part of the law of self-defence, but the defence in Bill C-60 provides a single, simple, general rule. The law on the books today, by contrast, is based on the same basic principles but is written in a very complicated and overly detailed way.

Why does the law need to be more complicated than these three principles? The answer is that it does not. One new feature of the defence of persons is the addition of a non-exhaustive list of factors to help guide the judge or jury in determining whether the conduct was reasonable in the circumstances.

Our government believes this additional feature will be welcomed by the courts, which will be called upon to interpret the law and instruct juries on a more simple defence. The factors on the list are well known in the case law dealing with self-defence, because they often arise in all kinds of different cases.

The list will include the nature of the force that was threatened and the proportionality of the response to it, whether there were weapons present and whether the parties had a pre-existing relationship, including in particular whether there were previous incidents of violence.

This last factor will be particularly important in cases where a battered spouse uses force. As the Supreme Court has noted in the landmark case of Lavallee, it is sometimes difficult for a jury to understand how a battered spouse might stay in a relationship or how they might come to understand the patterns of violence of their partner.

The list of factors to consider will help ground the jury's consideration of the facts by clearly identifying this factor, among others, as relevant to its assessment of reasonableness.

The current defence of property scheme has the same flaws as those of self-defence. There are too many overlapping provisions that set out specific situations and they are far too complicated to know which to apply and in what circumstances.

The reform proposed in Bill C-60 would dramatically simplify the law by setting out one single general rule for the defence. The same level of protection that is currently provided by five separate defences would be captured in one simplified defence. In the simplest of terms, a person will be able to do what is reasonable in the circumstances to protect property in their possession from being taken, destroyed or trespassed upon.

Bill C-60 expands the time in which a property owner can arrest a person who is committing an offence in relation to their property. This change will bring flexibility to the power of citizen's arrest, which will complement the other reforms in the bill by helping Canadians to protect their interests when the situation calls for urgent action.

I think all members can agree that clear and simple defences and a citizen's arrest law that provides flexibility for variations in the circumstances will allow all Canadians to take necessary and reasonable steps when the circumstances leave them with no other reasonable options.

I urge all members to support this important legislation.

If time allows, I would like to distinguish for all of the members present today the difference between Bill C-60 and the two private members' bills.

As I mentioned in my remarks, the government's bill is broader in scope. It clarifies and simplifies the law of self-defence and defence of property, and would expand the provisions governing citizen's arrest. The two private members' bills deal only with citizen's arrest.

With respect to the reforms to the citizen's arrest provisions, the government's bill would expand the time period for a citizen to make an arrest, but in a carefully and articulated way so as not to invite citizens to make such arrests where it is instead feasible and advisable for the police to do so.

Bill C-565, the NDP bill, proposes to allow a person to make a citizen's arrest of another person whom, on reasonable grounds, he or she believes has committed an offence and where the arrest occurs within a reasonable time following commission of the offence.

Bill C-547, the Liberal private member's bill proposed by the member for Eglinton—Lawrence, proposes amendments similar to Bill C-565 but without the reasonable time requirement.

Perhaps the member for Winnipeg Centre may want to read his colleague's bill. He mentioned something about reasonable time for a citizen's arrest, but that is not even included in that bill.

These two private members' bills would allow for a citizen's arrest based on reasonable grounds that an offence has been committed. However, there is no time limit within which this belief must be formed and the time could extend to weeks or months later.

The government's proposal, requiring that the arrester find someone committing an offence and make the arrest within a reasonable time only when it is not feasible in the circumstances for a peace officer to make the arrest, is more limited and more responsible. It does not equate the citizen's arrest power with that of the police.

[Cathy McLeod, Conservative, Parliamentary Secretary to the Minister of National Revenue]

Mr. Speaker, I would like to thank my colleague for articulating this important piece of legislation and detailing its different aspects.

The member talked about the difference between the two private members' pieces of legislation and our legislation. I would like him to articulate clearly the important changes in Bill C-60 that were not in those pieces of legislation.

[Bob Dechert, Conservative, Mississauga—Erindale, ON]

Mr. Speaker, as we heard today, the opposition has proposed two bills that are very limited in scope, without taking the time to look into what is really behind all of the circumstances in these types of cases.

When shopowners are confronted by a shoplifter, as Mr. Chen was, they look at what they need to do both to defend their property and, potentially, defend themself or staff or customers.

All of these provisions are wrapped up together. We cannot simply make a change to the time of a citizen's arrest without examining what people have the right to do to defend themselves or their property. However, that is typical of the opposition when it finally gets engaged in a criminal justice matter. Most of the time the opposition is against criminal justice legislation, and most of the time those members side with the offender not the victim.

In this case the government took the time to look at all of the related provisions and to make the necessary amendments that will clarify the law for all Canadians for decades to come.

[Alex Atamanenko, NDP, British Columbia Southern Interior, BC]

Mr. Speaker, I was going to thank the hon. member for his speech until he came out with a real cheap shot in saying that we do not believe in justice bills. That is blatantly untrue, and the member should realize that. It is time for those guys over there to work with us to come up with some good legislation, which is what we should be doing here in the House.

I would like to ask the hon. member if he recognizes that my colleague from Trinity—Spadina, with her private member's bill, and the tabler of the Liberal Party's private member's bill, have actually laid the groundwork for this piece of legislation? In other words, would he give them some credit for the fact this issue is being debated?

I wonder if he could outline what he considers to be a reasonable time. It is my understanding that the difference between this bill and what currently exists is that this bill would allow a shopkeeper some leeway, a couple of hours or a day, to apprehend a person, whereas that is not possible now. I would like some clarification on that.

Much of the time we have problems like this owes to inadequate policing. I wonder if my colleague recognizes the fact that we need the federal government to step up to the plate, especially when it concerns the RCMP and our small rural communities, so that we will not have situations where police officers go off duty and are not replaced.

[Bob Dechert, Conservative, Mississauga—Erindale, ON]

Mr. Speaker, I thank the hon. member for his support for at least part of this legislation, and hopefully all of it.

My comment about the voting record of his party on justice bills is based on experience. He does not sit on the justice committee as I do, but I am there day after day listening to his colleagues on the justice committee present witness after witness against bills that are designed to rebalance the criminal law as between offenders and victims. I can say from experience day after day that they slow down and delay legislation by putting forward witnesses that only want to talk about the needs of offenders.

Let me talk about the timing of this bill. I and other members of the government met with shop owners, including Mr. Chen, immediately following the event that took place in his store. We heard what they think is necessary on a range of issues. It was not just the timing of the citizen's arrest in that particular case. That was one very narrow aspect.

What they are concerned about and face every single day working in their stores 16 to 18 hours serving their communities is that there are people who repeatedly and violently steal from them. They need to know what they can do to defend their property and to defend themselves, their staff and their customers when these people enter their stores.

It would be unreasonable to simply add the word “reasonable” to the Criminal Code, which is essentially what the NDP wanted to do. They wanted to insert one word so they could say they have done something in responding to people's needs without actually taking the time, which is typical of the opposition, to get to the root of the problem and make important reforms that would solve the problem and simplify the Criminal Code for police, judges and all Canadian citizens.

[Kevin Lamoureux, Liberal, Winnipeg North, MB]

Mr. Speaker, my question relates to what a reasonable amount of time is. It would be of great benefit if he could expand upon what is a reasonable amount of time. I would appreciate whatever the member may be able to put on the record with regard to that.

[Bob Dechert, Conservative, Mississauga—Erindale, ON]

Mr. Speaker, that is a good question. What is reasonable really has to depend on the circumstances. It is very difficult to say generally what would be reasonable. In the specific case that was a catalyst for this bill, the court actually found that the period of time was not really in question because the perpetrator was actually in the process of perpetrating a secondary crime at the time the citizen's arrest was made.

However, we have made it clear that in addition to a reasonable period of time, it must also be not feasible in the circumstances for the police to be called in to make the arrest, which is of course what we want to happen in the vast majority of cases. However, when that is not feasible and police are not available, it would be reasonable for a citizen to make an arrest.

If the member is a lawyer, he may know that Lord Denning, a famous member of the House of Lords, said that what is reasonable is what is in the mind of the man on the Clapham omnibus. If I could put that in Canadian terms, it is what citizens on the Burnhamthorpe Road West bus in my riding or on the GO train going to work every morning would think is a reasonable period of time in which they could make an arrest in order to protect their property.

[Olivia Chow, NDP, Trinity—Spadina, ON]

Mr. Speaker, I do not see the relationship between a citizen's arrest in David Chen's case at the Lucky Moose and spousal abuse.

The bill in front of us has three parts. The first deals with citizen's arrest, the second with defence of property and the third with self-defence. Why has the Conservative government tacked on the two other elements when there is unanimous consent on the first element of citizen's arrest? The Bloc, the Liberals and the New Democrats are in agreement on changing the words to allow a reasonable amount of time on reasonable grounds. We have no problem with that. The other two parts basically remove the section that said “not intended to cause death or grievous bodily harm”. This means that the Conservatives are expanding the whole notion of when people can protect themselves. It gets into very muddy waters.

I cannot see how self-defence is connected with a citizen's arrest and why it is included in this bill.

[Bob Dechert, Conservative, Mississauga—Erindale, ON]

Mr. Speaker, if the member actually took the time to speak to shopkeepers, she would understand that in the vast majority of cases they are actually defending themselves in addition to defending their property. They need to know what they can do in order to protect their personal health. Also, they need to know what steps they can take to protect their property. These things are all intertwined.

If members actually take the time to think about what is going on and what shopkeepers need to do when they see somebody come into a store and take something off the shelf, they will realize that we are taking nine very confusing provisions of the Criminal Code, section 34 to section 42, and section 494, and we are simplifying them into three provisions that everyone will be able to understand.

[Olivia Chow, NDP, Trinity—Spadina, ON]

Mr. Speaker, first, I want to say that David Chen of the Lucky Moose Food Mart would never want to assault another human being. Therefore, this whole question of self-defence is a red herring, because he was not being attacked by the person who stole things from his store. It is not a question of self-defence we are dealing with. We are talking about his right to make a citizen's arrest.

Why do we need the part of this bill that deals with citizen's arrest? From coast to coast to coast we have heard from small business owners, not just from the one group the Conservative government spoke of having one or two meetings with. I have in fact met with store owners not just in Toronto but in Vancouver and Montreal also. They are saying that they work long hours, their profit margins are small and, unlike large stores, they have no money to hire security guards and do not want to do so. They really do not have a lot of extra staff on hand. They work such long hours and their profit margins are very low, so every dollar they lose from shoplifting means that they must work many more hours.

Let me describe Mr. Chen's situation. I believe that a large number of Canadians are now familiar with the story.

Mr. Chen works at least 16 to 18 hours a day, seven days a week, every week of the year. Most times he and his wife stay upstairs above the store in order to wake up early in the morning to go to the market to buy the merchandise they sell in their store. They hire a number of employees. However, on average they make around minimum wage, so every $100 they lose means they have to work another 10 or 15 hours. When they noticed that a person was repeatedly coming to their store to steal plants and food items, they wanted to take action. It is not that they wanted to cause any harm to anyone. They called the police several times and yet the police for some reason did not come.

An hour later the thief came back with the intent to steal more plants, because the first time around the thief was unable to carry all the plants that he wanted to take. He came back to steal more, but did not get to do that. David Chen proceeded to give chase and held the person in his van. Once the police arrived, Mr. Chen was charged with the very serious offences of assault, confinement, carrying a concealed weapon, et cetera.

Mr. Chen had difficulty finding the time and financial resources to hire a lawyer to go to court over and over again to defend himself. Members of the community in Toronto organized a fundraising banquet in order to support him because they felt that what had happened to him was unjust.

In my riding, we have noticed that what occurred to David Chen is not an isolated incident. Another store owner in the Kensington market area, Jeff Ing, who sells fruits and vegetables at his store, Jungle Fruit, has lost a lot of business because of the same person who was shoplifting at the Lucky Moose.

I then went with the member for Vancouver Kingsway to talk to other store owners. We walked along Victoria Street with a petition in support of my private member's bill, Bill C-565, that would allow a citizen's arrest to happen, not at a time when the offence is taking place but within a reasonable amount of time after an offence has taken place, with reasonable grounds. Every shop on Victoria Street and every shopper with whom we spoke were willing to sign the petition. They thought it was important that the Criminal Code be amended with a very common-sense amendment and that it was high time for such an amendment to take place.

Some people asked whether the amendment would encourage vigilantism. No, it would not because the code would not be changed in a way that would allow a citizen's arrest to be done in a way that would cause harm. The “arrest” is basically detaining the person while waiting for the police officers to come and make the actual arrest. The amendment would not change any part of the code dealing with using force.

Some may ask if it means that the employees of some stores would be requested to put their lives in danger in order to apprehend shoplifters. Absolutely not. People do not need to detain shoplifters. We encourage people to call the police and wait for them to come. It is only when there is no other choice that they would make a citizen's arrest. No employees would be under any duress, because they are protected by the provincial labour code, to put themselves in any kind of dangerous situation. It would not justify any use of force because that is not what it is all about.

We believe it is up to peace officers, RCMP, provincial police and the local police force to do their job. We need to ensure that community policing is the order of the day. We need to ensure the police are visible in the community, work closely with the communities and the business improvement area so we can reduce shoplifting incidents in the first place, rather than waiting for them to happen and a citizen's arrest having to be made. It is also important that the Conservative government honour its campaign promise to hire more police officers. However, in some cities across Canada, we have not see the increase of police officers as promised.

We must also invest in crime prevention. The person shoplifting should have drug treatment programs to ensure he or she quits the drug habit. The shoplifter admitted to that. For young people who may fall into gang situations, we need to find ways to ensure they have good role models and good employment programs before they start shoplifting in the first place.

Bill C-60, however, is not just about citizen's arrest. Two other portions in Bill C-60 are far more complex. I fail to see why the government would not allow this portion, which has the unanimous support of all parties, to move ahead, which is precisely the request that came from the community.

The member from Mississauga—Erindale, the Parliamentary Secretary to the Minister of Justice, was in receipt of suggestions for a private member's bill from the community with the precise wording that both myself and other members of Parliament have submitted. The community was interested in the citizen's arrest portion of the Criminal Code.

Adding in the defence of property and self-defence muddies the water. If the Conservatives are not willing to split the bill and do a quick consent for citizen's arrest, then the bill will go to the justice committee where it must go through a very detailed study of the two portions.

Some elements that modernize the Criminal Code may be worthy of support but some of the other amendments may have unintended consequences. For example, removing the requirements on the use force in self-defence could lead to troubling incidents and may result in the escalation of violence. I certainly hope not but we do not know.

The guideline right now is very straightforward in that ordinary Canadians are not allowed to use force that could result in the death of the attacker unless they believe their life is at risk. The use of force must be proven in order to defend oneself. If the definition of the type of threat is removed, then unintended consequences may result for people who believe they are under any kind of threat. In the Criminal Code now, the amount of force needed to repel an attack should be used, but not more. Why do we need to change that aspect of it?

This part of the bill is quite complex and causes some unease in terms of what precisely the Conservative government is trying to do, which is why we are calling upon the Conservatives to immediately split the bill and allow the other two portions of the bill to undergo careful examination. If the government is not willing to do so, then it is playing politics with incidents like David Chen's incident at the Lucky Moose Food Mart. Instead of working with other parties to get results and make Parliament work, the Conservatives want to take this incident and play partisan games with it, which is most unfortunate.

I hope that is not the government's intention, and I do not detect that intention. I sense a willingness of all parties to work together to ensure that incidents, like David Chen's incident, never happen again.

Perhaps all members of Parliament have heard the petitioners from coast to coast to coast who have petitioned Parliament to take action. I recently submitted 10,000 names to Parliament of people urging us to take immediate action.

This debate on amending the Criminal Code for citizen's arrests has been requested by the community for over a year and a half. The incident that led to this discussion, David Chen's incident, occurred in May 2009. It is not as if this just occurred. We have had a long time to look at the Criminal Code and a long time to discuss what needs to be done. On my private member's bill, which came forward in September of last year, there were numerous discussions on the citizen's arrest portion. A lot of store owners from Montreal have talked about this and they want us to work together.

It is my sincere wish that we do not muddy the water with the other two portions of this bill and allow the citizen's arrest portion to move ahead. There is no doubt that the whole notion of self-defence and protection of property in the Criminal Code, which was written a long time ago, will eventually need some kind of adjustment and amendment with more modernized wording so that the different sections can be compressed into a few sections. I understand why that is necessary but to tack it on to Bill C-60 is unfortunate.

The other element of this is that we do not know whether the Conservative government will bring forward a budget that is supportable by all parties. If the budget comes forward and one of the opposition parties makes a decision not to support it, then Parliament will not survive past the end of March. If that is the case, then all the work that has been done to amend the Criminal Code, specifically on citizen's arrests, will not occur.

We are in early March and there are only a few weeks before the coming budget. For this bill to get through second reading today or tomorrow, then go to the justice committee where it has a large number of justice bills in front it, and then, assuming it passes there, to come back to the House of Commons at report stage and then third reading will take quite a bit of time. After that, it still needs to go to the Senate for approval.

Leaving this bill so late, in terms of the upcoming budget, is most unfortunate. I do hope the government will work with the opposition members of Parliament to split the bill and allow the citizen's arrest portion to move ahead with unanimous consent.

[Bob Dechert, Conservative, Parliamentary Secretary to the Minister of Justice]

Mr. Speaker, I know the member met with her constituent, Mr. Chen, and other shop owners in her constituency. She is sincerely trying to amend the law to fix what everyone recognizes are anomalies in the law.

In her comments, the member asked why we need to amend the right to self-defence and the right to defence of property. With respect, I think she answered her own question in her remarks.

The member then went on to describe some of the facts in the Mr. Chen, Lucky Moose Market case. She rightly mentioned that he was charged with assault and forcible confinement. What happened in that case was that he chased the perpetrator down the laneway, arrested him, tied him up and put him in the back of a van. Therefore, he was charged with assault and with confinement. He needs to know that the provisions of the law that he was charged with are: What right did he have to defend his property; what actions could he take to defend his property; and what actions, in a more broader case, could he take to defend himself.

I wonder if the member could comment on that.

[Olivia Chow, NDP, Trinity—Spadina, ON]

Mr. Speaker, at no time did David Chen feel that the shoplifter would assault him. When he gave chase, it was because of the plants that the shoplifter had taken. I fail to see how removing a section such as, “not intended to cause death or grievous bodily harm” from the Criminal Code to justify self-defence would help the situation.

Right now a person has to prove that he or she used force in order to defend himself or herself. At no point was that really the question. The question was whether it was within David Chen's right to make a citizen's arrest. Had he done so when the shoplifter was stealing in the store he would not have been charged, but because he chased him outside after the shoplifting had occurred, that was the real problem. That was perceived as the problem. That was what was debated in court.

I sat through the entire summary by David Chen's lawyer. I also sat through the entire judgment when the judge acquitted David Chen, so I am very familiar with the court case.

[Alan Tonks, Liberal, York South—Weston, ON]

Mr. Speaker, the member has somewhat addressed the issue with respect to defending one's property within the context of an incident that was going on in a shop, as the case was.

The police and law enforcement agencies are concerned however with respect to the chase and the serious harm that could be done to an individual who has had his or her property stolen under the conditions Mr. Chen found himself.

Would the member elaborate in terms of how we could minimize the impression with the community that this is an action that, while understandable, is one that could place an individual in harm's way? Is there some associated communication that we could put out to the public? Is there anything we could entrench within the Criminal Code that would remind people, particularly those who are dealing with the public on a day-to-day basis, that quick acceleration of an incident could be dramatically harmful?

[Olivia Chow, NDP, Trinity—Spadina, ON]

Mr. Speaker, when asked by the media whether he would do the same thing again, David Chen said he probably would not. When asked what he would do if the incident happened again, he said that he would call the police.

Shoplifters still come into his store. He has a video camera in his store and he takes photos of the shoplifters and puts them on display. It is public shaming in a way. He works very closely with the police.

One of the consequences of the whole incident is that community-based policing in Toronto's Chinatown is much better. People are now working closely together so that the police response is faster and the store owners understand that they should call the police and make sure police officers are notified first.

It is a learning experience for some store owners. I am glad that lesson is learned, but that does not justify what happened to David Chen and all the things he went through. However, he wants to tell the other store owners to wait for the police to come, if they can.

[Don Davies, NDP, Vancouver Kingsway, BC]

Mr. Speaker, just last week I visited businesses in Vancouver Kingsway, which is a community full of small businesses and many hard-working store owners and business owners of all types. In particular the Chinese, Vietnamese and Filipino communities all have a very strong business work ethic and they tell me that they are struggling.

They told me that many of their businesses are on the margins of survival and it is extremely critical that they be able to protect their property in every respect. Losing $5,000, $10,000, or $100,000 a year is the difference in their businesses remaining viable.

My hon. colleague walked with me up Victoria Drive in Vancouver Kingsway and spoke to store owners. I am wondering what the store owners and small business owners are saying in her community about the good work she has been doing with respect to pushing this issue forward in the House.

[Olivia Chow, NDP, Trinity—Spadina, ON]

Mr. Speaker, store owners in Toronto's Chinatown, throughout Toronto and across the country are saying that they want all political parties to work together to change the law and make it more flexible in terms of citizen's arrest. They would then feel secure knowing if they did something similar to what David Chen did, they would not have to go through what he experienced, namely, a year and a half of lost time, a huge amount of expense and a lot of attention that he did not want.

They are hoping for speedy passage of the amendment to the citizen's arrest portion of the Criminal Code.

[Serge Ménard, Bloc, Marc-Aurèle-Fortin, QC]

Mr. Speaker, at this stage, I will say that we plan on voting in favour of sending this bill to committee to be studied. It must at least be substantially amended, if not replaced by the bill that all legislators in this House wanted and that was much more simple than the one we have in front of us today.

The speaker before me mentioned some incidents in Toronto that have made people think. Two members from two different parties introduced much simpler bills to clarify things.

I will sum up the situation. A store owner who sees a shoplifter who has previously stolen from him return to his shop and act the same way, realizes that he will once again be robbed. He does not have time to call the police, who would not arrive in time. Therefore, he decides to arrest the individual himself and detain him until the police arrive. That is something that makes sense. I will talk about two cases I pleaded that show that this is useful, especially in a country as vast as ours, where sometimes the police are far away and may take 45 minutes to an hour to come arrest someone who is committing an offence on or in relation to property.

We should have been satisfied with these private members' bills. What is strange in this case is that the department is telling us that it is introducing this bill to clarify things, but the language it uses is far from clear. In a few moments I will read some excerpts. I think it will take a lot of thinking and explanations before we can truly understand the provisions of the bill.

I am told that people love to hear my speeches in the House. It feels as though we are talking to an empty room or to a completely disinterested group of people. Our debates are televised and some people are disappointed if I do not use examples from past cases of mine to illustrate my point. I will talk about two cases, if I have the time.

I would like to clarify our position from the outset. We recognize that this amendment to section 494 is exactly what members want right now. Subsection 494(2) of the Criminal Code states the following:

Any one who is

(a) the owner or a person in lawful possession of property, or

(b) a person authorized by the owner or by a person in lawful possession of property,

may arrest without warrant a person whom he finds committing a criminal offence on or in relation to that property.

It is important to take note of what is not said in this subsection. It says “finds committing”. But if the following day the owner sees the person who committed the offence to his property—such as breaking his car windows, for example—it is too late to make a citizen's arrest.

That is what happened to Mr. Chen, as was mentioned by the previous speaker. And it happens quite often. We agree with the amendment proposed in Bill C-60, which would change subsection 494(2) to the following:

The owner or a person in lawful possession of property, or a person authorized by the owner or by a person in lawful possession of property, may arrest a person without a warrant if they find them committing a criminal offence on or in relation to that property and

(a) they make the arrest at that time;

Up until that point, there are only slight changes to the current law, but then the following is added:

(b) they make the arrest within a reasonable time after the offence is committed and they believe on reasonable grounds that it is not feasible in the circumstances for a peace officer to make the arrest.

This amendment, which is similar to two private members' bills previously introduced, would resolve the problem that we are all now aware of and provide the solution that we all want.

This government has a bad habit. Whenever it sees that the House is likely to reach unanimous consent on a given measure, it always has to add something. We in the Bloc Québécois are particularly concerned about the changes it is making to the principle of self-defence.

For instance, here are two situations that could become legal and—even worse—become widespread, if the bill passes in its entirety. After a dispute over a fence degenerates, one neighbour utters death threats against the other neighbour and his family. Incidentally, people do not usually really mean them when they utter death threats. They usually amount to nothing more than excessive language, not all that different from what is often heard here in this House, for example. The two are more or less on the same level.

One thing is certain: the neighbour who hears those threats should not feel truly threatened. However, say he does feel threatened and fears for his life, and wanting to defend his family, he will say, he goes after his neighbour and kills him, justifying his action by saying that the police could not guarantee his safety and that of his family in the long term. In such a case, no one would ever know if the deceased neighbour ever really intended to carry out his threats. Thus, if potentially deadly force is to be used, we want to ensure that the danger is real, that there is no other option besides violence to respond to those threats.

In the other scenario, imagine a young person shoplifting in a convenience store. The store clerk, outraged by this recurring act in his store that is eating up his profits, pulls a shotgun on the shoplifter, but it fires accidentally. At present, that is a criminal offence, because it deals with property and because it involves someone who is not a peace officer. He would be using force that is disproportionate to the crime committed and that caused someone's death.

This is why we want to carefully study the provisions of this bill that have to do with self-defence.

I have practised criminal law since 1966 and have always found the current provisions to be logical and rather self-explanatory and not requiring any radical changes. For example, without going into all the details, the current provisions on self-defence against unprovoked assault start out as follows:

(1) Every one who is unlawfully assaulted without having provoked the assault is justified in repelling force by force if the force he uses is not intended to cause death or grievous bodily harm and is no more than is necessary to enable him to defend himself.

(2) Every one who is unlawfully assaulted and who causes death or grievous bodily harm in repelling the assault is justified if

(a) he causes it under reasonable apprehension of death or grievous bodily harm from the violence with which the assault was originally made or with which the assailant pursues his purposes; and

(b) he believes, on reasonable grounds, that he cannot otherwise preserve himself from death or grievous bodily harm.

No matter their education, jurors who carefully read this section, or if it is read by the judge—perhaps judges provide a copy of the Criminal Code section—are perfectly capable of understanding it. Now here is what they want to replace it with. Why? I do not know.

This is the proposed wording:

A person is not guilty of an offence if

(a) they believe on reasonable grounds that force is being used against them or another person or that a threat of force is being made against them or another person;

(b) the act that constitutes the offence is committed for the purpose of defending or protecting themselves or the other person from that use or threat of force;...

I am not exaggerating when I say that I am certain that anyone hearing this for the first time will not understand the underlying principle. However, if they referred to the text I read earlier, the current Criminal Code section, they would have a much better understanding.

I do not understand when the government says that it wants to clarify an act, but then it uses such esoteric language to replace Criminal Code provisions that have stood the test of time.

As a lawyer, I have been involved in various cases. I remember a client who was accused of manslaughter. In fact, he might have been accused of murder, but the Crown was prepared to convict for manslaughter of a boat thief.

The defendant was living on an island east of Laval and he had several neighbours. Thieves would arrive by water. One night, the defendant, who was having prostate problems, got up and turned on the lights. He heard a noise, looked outside and saw people fleeing in a canoe. He realized that they were thieves. He finished what he was doing and went back to bed. Later, he heard the sound of boats knocking together even though the river was calm at that hour. He kept the light off and looked outside. What did he see? He saw two people in a canoe pulling his neighbour's motor boat behind them. He yelled out to them and told them to let go of the boat immediately, that they had been caught red-handed. The people kept paddling as though nothing were wrong and headed toward a nearby island to hide. The man found the shameless thieves and told them he had guns. He warned them to give up the boat or he would shoot.

At this point his wife was awake and he asked her to call the police. He could still see the two men paddling. Since he is a hunter, he has at least two guns: a rifle he uses for big game hunting and a .22 calibre gun.

He decided against using the moose hunting rifle because the shot could be fatal and the .22 calibre gun would make enough noise just to scare them. The man warned the thieves that he was aiming his gun at them, ready to shoot, but they kept on paddling. He decided to shoot in front of the canoe to scare them, but they kept on paddling. He warned them he was going to shoot again and he ordered them to let go of the boat. The thieves continued to paddle. The man took another shot in front of the canoe—or so he thought. Then one of the perpetrators seemed to be hiding in the canoe and the other raised his paddle and said they were surrendering. They came back toward him. The police were called to the scene.

One of the two thieves got out of the canoe, but the other one seemed to remain hidden inside. The man warned the thieves that he was armed and that they should not do anything foolish because the police were on their way. Finally, when the police arrived, the man handed over the rifle, trembling, and said that there was another person hiding in the canoe. The police went to look in the canoe and saw that the other person was dead.

Normally, a .22 calibre bullet fired at that range should not do that, but a .22 calibre bullet is still a bullet even though it is small and slow. In this case, the bullet entered the thief's side, passed between two of his ribs, through one of his lungs—where there was not much to stop it—and lodged at the base of his heart, which is what caused his death.

A police officer would have had the right to do what this man did, although admittedly a police officer would not have done it. Nevertheless, under the Criminal Code, a police officer has the right to behave like this. He used the only force available to make the arrest and it was deadly force. Individuals do not have the right to use deadly force simply to protect their property.

I told myself that the jurors would understand his position, so we decided to bring the case before a jury. We had an expert shooter come in, who told me to ask the police officers whether they had touched the weapon or made any changes to it. I asked him why and he said that he would tell me later. The police officers said that they had kept the weapon as they had found it. The expert shooter noticed that the sight was not calibrated for the range in question. He said that if the man in question had not wanted to hit the thieves, he should have aimed above their heads. Although a bullet travels several feet per second, a canoe also travels a certain distance in several seconds.

I thought that the judge would have to often reiterate that the force must be reasonable and proportional to the situation. If shouting was not enough to convince boat thieves who are on the water to stop, how else could they be stopped other than with a shot? The man had weapons at his disposal and he chose the less dangerous one. He aimed ahead of the boat so that the thieves would see the flash. His arguments convinced the jury and he was acquitted even though the judge told me that she would have found him guilty. She did not sentence him to time in prison since she understood his reasoning. This earned me some nice comments from the presiding juror, who knew Mr. Roy, Mr. Mulroney's former chief of staff. Mr. Roy was actually her nephew, and she told him that the lawyer was extraordinary. However, that has nothing to do with the application of the law, except that a law that is difficult to understand could lead to a sympathy verdict. This bill is ten times harder to understand.

I think that I have time to talk about another case, but it is about the ordinary arrest of an ordinary citizen after the fact. It is similar to the case of Mr. Chen, except that a security guard was involved. It is 17 years since I last practised criminal law. At the time, it was not popular for men to shave their heads, except maybe a few troublemakers. The individual in my case had no hair, no eyebrows, nothing. He had what is called alopecia universalis. He told me that he had no hair anywhere—yes, even where you are thinking. It is odd to see someone without any hair or eyebrows. This person told me that a few thousand people in Montreal have this condition, including the drummer of for the band Corbeau. He said that people always mistook him for someone else.

He had just moved and went into Steinberg's grocery to buy some bread and coffee for breakfast. When he got to the cash, he was arrested by the security guard who said that he had stolen something the day before. He responded that he had not been in the store the day before and that it was likely someone who looked like him. He said that he was often mistaken for the drummer from Corbeau, who had the same condition.

We explained his conditions and the effects of it, but when I tried his case, the security guard at the door of the court had the same condition. So we did not need an acquittal, but we filed a lawsuit. Steinberg went bankrupt and the security guard committed suicide. He had made a mistake by arresting him the following day. He did not have the right to arrest him because he had not caught him in the act.

[Larry Bagnell, Liberal, Yukon, YT]

Mr. Speaker, if the “H” government will allow me to speak in this “H” Parliament, in this “H” House of Commons, I would like to make a couple of comments.

The parliamentary secretary made two comments. One was on the witnesses brought to committee by the opposition. The other was about the time we spent deliberating in committee.

Like that member, I sat on justice committee in the past. I thought the opposition witnesses brought the expertise that was needed. Often the bills we saw in justice committee were not well thought out by the government. They were totally off track of what would have been useful.

The member implied that we spent too long discussing a bill without giving it thoughtful consideration. Yet in committee expert witnesses told us time and time again that they had not been consulted. Those witnesses could protect victims and make Canada safer.

Does the member think the witnesses brought to committee by his party and other opposition parties are not useful to the process? Does he think too much time is spent in thoughtful debate in committee, or is just part of the anti-democratic modus operandi of the Conservative government?

[Serge Ménard, Bloc, Marc-Aurèle-Fortin, QC]

Mr. Speaker, I know that the witnesses we call are useful, but I do not understand what the hon. member's comment has to do with Bill C-60. We have not yet reached committee stage. We might have a witness in mind to invite, but as far as I am concerned, there are certain observations we can already make ourselves. With a small amendment, the current bill would be improved and not so confusing.

[Joe Comartin, NDP, Windsor—Tecumseh, ON]

Mr. Speaker, my colleague from the Bloc made some opening comments about this, but can he see any advantage at all in the proposed amendments in the first part of the bill, not those relating to section 494, but those relating to sections 34 to 42 of the code that deal with the right of self-defence, the right of defence of property, both residential and commercial, and the right of defence to protect one's other personal assets? Does he see anything in the proposed amendments in regard to those sections that would advance the law or protection for our communities?

[Serge Ménard, Bloc, Marc-Aurèle-Fortin, QC]

Mr. Speaker, not at all. I see it as a step backward to give less importance to self-defence with force likely to cause death. I also believe that the proposed amendments will make the bill much more confusing than it already is. What is more, in our experience over the years and in my experience as a lawyer, the current law has not caused much confusion, but there are sections in this bill that are absolutely illegible. The answer to the question is clear. I do not see any progress; I see a backward movement.

[André Bellavance, Bloc, Richmond—Arthabaska, QC]

Mr. Speaker, my colleague from Marc-Aurèle-Fortin is absolutely correct. For people who do not have a background in law, it is very helpful to be provided with real, concrete examples of what has happened in similar situations. At the beginning of his speech, he referred to certain private member's bills that have been introduced and that deal with these type of situations. For example, in the Toronto area, the owner of a convenience store had to use force to restrain a thief. As a result, members introduced bills.

The member for Marc-Aurèle-Fortin brought up certain problems that exist in Bill C-60. I would like him to explain the difference between the bills introduced by private members and the bill introduced by the government so that people like me, who do not have a background in law, can understand. He has said that the private members' bills are simpler. I would like to know what specific problems he sees with Bill C-60.

[Serge Ménard, Bloc, Marc-Aurèle-Fortin, QC]

Mr. Speaker, the overall problem is that it will create confusion. The degree of force that can be used in self-defence is too subjective a concept. The legislation is good in that it extends the time within which an owner or his representative can arrest a repeat offender—that was already established in the law.

The example that I gave you, which was something I experienced during my time as a lawyer, demonstrated that someone should be arrested on the spot. If he is arrested the next day, a mistake could be made, even though there might be good reason for it, such as seeing a person with no hair or eyelashes. But it could be someone else.

Given the incident in Toronto, given the size of our country and given the time that it takes for police to arrive on the scene as they are often called to do, a little more time must be allowed after the offence is committed. As for the rest, why make the concept of potentially deadly force more subjective, especially if the owner does not fear for his life but simply fears the person who is attacking him?

[Paul Szabo, Liberal, Mississauga South, ON]

Mr. Speaker, the concerns the member raised and the concerns we have heard from other stakeholders in this matter raise the question about whether the bill should have been referred directly to committee before second reading. Members will be asked to vote on a bill that has some problematic areas in which expertise is necessary. This matter happened back in October of 2010. We are four to five months later and we are only at second reading debate.

The whole process seems to have been poorly thought out by the government. I hope the member would agree that the best approach is not to pass a bill at second reading, with approval in principle, when we could put it straight to the committee and make fundamental changes, about which I believe the member is talking.