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House of Commons Hansard #140 of the 40th Parliament, 3rd Session. (The original version is on Parliament's site.) The word of the day was code.

Topics

Citizen's Arrest and Self-defence ActGovernment Orders

4:15 p.m.

Bloc

Marc Lemay Bloc Abitibi—Témiscamingue, QC

Mr. Speaker, I would like to thank my colleague for his question. They might seem to be tough on crime, but they only needed to amend subsection 494(2). They did not need to touch sections 34 and on. That is what irritates me. Bill C-60 was introduced to deal with a specific problem and that is fine. But at the same time, they are trying to meddle in every court decision ever made on self-defence. My colleague from Marc-Aurèle-Fortin has said before that bad laws make good lawyers rich.

If Bill C-60, which amends sections 34 through 42, is passed as-is, lawyers will be laughing all the way to the bank just because they can exploit the wording of this incomplete bill. Let us fix section 494 now and deal with the rest later.

Citizen's Arrest and Self-defence ActGovernment Orders

4:15 p.m.

Conservative

The Acting Speaker Conservative Barry Devolin

It is my duty, pursuant to Standing Order 38, to inform the House that the questions to be raised tonight at the time of adjournment are as follows: the hon. member for London—Fanshawe, Status of Women; the hon. member for Lac-Saint-Louis, Public Safety; the hon. member for Richmond Hill, National Defence.

Citizen's Arrest and Self-defence ActGovernment Orders

4:15 p.m.

Liberal

Derek Lee Liberal Scarborough—Rouge River, ON

Mr. Speaker, a number of us have been waiting for Bill C-60 to come forward, at least we were hoping it would, although, as my remarks may show, it was never clear that the self-defence provisions of the Criminal Code, which the bill would purport to fix, were really broken. However, it does provide for a very interesting debate, at least for those of us who are interested in some of the micro details of the Criminal Code, especially as they relate to the common law.

As colleagues have already pointed out, on one level the bill was drafted to address a situation that arose in a Toronto Criminal Code prosecution. It is one that I got involved with on the street, as a number of publicly elected people did at the time because of the nature of the facts. I can say that the proposed new wording for subsection 494(2) is a reasonable attempt to address the fact sequence in that case. I am not sure that an amendment actually is needed, but I respect the intention of that portion of the bill.

The rest of the bill quite surprisingly purports to codify the common law provisions of self-defence and put them in the Criminal Code. I was not aware that these provisions were broken. I always subscribe to the adage that if something is not broken, we should not try to fix it. I am getting the impression that is what is going on with the other aspects of Bill C-60.

Let us go back to the first set of issues involving subsection 494(2) and the unfortunate events surrounding the shoplifting and attempted shoplifting at the Lucky Moose supermarket. That is a real business in the heart of downtown Toronto and is owned by a very fine gentleman, a proprietor and small businessman who is very hard working, as are his employees.

He was confronted by a shoplifter. The particular shoplifter is known to almost everyone who works there. He is a repeat offender and has a record longer than my arm. He is so notorious as a thief that his picture has been placed throughout the neighbourhood on lamp posts. His modus operandi involves going into an area with his bicycle, parking it, stealing something, getting on the bike and whisking away. As I say, he has a very lengthy record. He is before the courts now and probably will be for the foreseeable future, so there is no point in my saying much more than that.

The store involved is one that puts merchandise out front. Sometimes it is vegetables, fruit or flowers. Canadians in large cities will be very familiar with that format of a grocery store or supermarket.

What happened on that particular day was that the thief showed up once, stole merchandise, left in the way I described on the bike, and showed up again later. At that point he was recognized and the shop owner and his employees took steps to apprehend the guy, knowing that he had already stolen once and was preparing to do it again. The guy was apprehended. The outcome was shocking and really quite sad to me and many other people in that the shop owner was charged.

A few weeks ago the court case ended with the charges being dropped. In the meantime, the unfortunate proprietor had to undertake a defence. He had many people in the community supporting him. He had a good legal team. The sad thing was that this law-abiding citizen suddenly, in the course of defending his business, became an accused criminal.

This bothered me a lot at the time. Because it was before the courts there was not a whole lot any of us could do. We just hoped for fair treatment in the courts. That eventually happened, but at what cost to this law-abiding businessman in our community?

In my view, the whole story from start to finish should have been about that businessman, Mr. Chen. It should have been about him and his business and its place in our community, but for reasons I really cannot explain and none of us could, it was not about that. The police changed the story. The police turned him into an alleged criminal and it became a story about the powers of arrest by police versus the citizen. That was just wrong.

I do not know what part of the system went wrong, but I am not alone in saying that whatever went on in the days that followed that event, it did not happen properly. In my view, it was not even in accordance with the law as I read it. I think the police and the prosecutors made a mistake in forcing Mr. Chen to defend himself. I can only say that the police and the prosecutors were doing more to defend their own powers of arrest than they were to protect Mr. Chen and his business.

I say that sadly because in Toronto we have a very good police force. Its motto is “To Serve and Protect”, but one can only ask how much did it serve and protect Mr. Chen in this case. The police turned him into the alleged criminal and it took him a year to clear his name.

Was there a need to change the law? I do not think there was, but I can see the argument that there was. It is quite a normal reaction to say that if the existing state of the law is interpreted by the police as this, we have to change the law. I understand where that is coming from. I am just not sure that the police had the law correctly.

I did a bit of research, and needless to say I had a bit of help doing it. In looking at the law, of course it is related to the common law in that the powers of arrest that citizens have are buried in the common law. They exist. They are real. They are not a fiction. The Criminal Code does not say citizens have the power of arrest. The common law says that citizens have the power of arrest. In fact, citizens had an obligation to effect an arrest in the old days and if they did not make the arrest, they could be fined. Even though we do not fine people now for not making citizens' arrests, the powers are still there and they are referred to, at least indirectly, in our Criminal Code the way it has been worded up to now, and members should keep in mind our Criminal Code is over 100 years old.

In common law, the power of a private person to arrest is limited to treason or a felony that has actually been committed or attempted, or where a breach of the peace has been actually committed or is apprehended, and larceny, theft. Stealing is a felony in common law.

There was no power to arrest for a simple misdemeanour where there was no breach of the peace and where it was not necessary to arrest the offender to prevent the renewal of the act. Members should please recall, as I go through this, that the thief in the real life situation showed up again, apparently to steal again, with his bike, the same modus operandi, the same routine. He showed up again and that is, I repeat, a renewal.

For people who are interested in history, in 1892, the old system of misdemeanour and felony was wiped out and replaced in our Criminal Code and in the British system. However, abolishing the distinction between felonies and misdemeanours at that time had no effect on the principles of arrest without warrant in the common law, at least for breach of the peace.

Section 8 of the current Criminal Code permits all of the common law defences to be used. Citizens should take some comfort in knowing that all of the common law defences that we have had for hundreds of years, going back to the Magna Carta, still exist in the Criminal Code unless they have been explicitly removed, and case law across the country has confirmed that, similar to other jurisdictions.

I will read the current state of this as best I could research it. In the case of a breach of the peace, there is a power to arrest, without warrant, on the part of a citizen where:

(1) a breach of the peace is committed in the presence of the person making the arrest; or

(2) the arrestor reasonably believes that such a breach will be committed in the immediate future by the person arrested although he has not yet committed any breach; or

(3) where a breach has been committed and it is reasonably believed that a renewal of it is threatened.

I just referred to my research here, that is the case of R. v. Howell, which was a British Queen's Bench case.

However, the court dare held that there must be an act done or threatened to be done that either actually harms a person or, in his presence, his property.

In the Lucky Moose supermarket case, there was property and a threatened new breach of the peace, which was the taking, the theft, the larceny in relation to the property of Mr. Chen. That particular line of reasoning does not appear to have shone through in this particular court case but I believe it should have. I believe the prosecutor should have known that. I believe the police should have been told that. Mr. Chen should not have been charged.

In any event, he was charged but, fortunately, the judge who presided, in the end, made the right decision or decisions and we in Toronto have all gone on with our lives.

However, I found two things regrettable. One was the lack of appreciation of the prosecutors and the police of these of common law provisions. If that is the state of the art and our police and prosecutors do not know these common law defences and common law provisions that citizens have been basing their lives on here in our jurisdiction and under our Constitution for over a century, then maybe it is time to rewrite the code. We will write it down for them so they can read something and be satisfied with it.

However, I do regret that all of this transpired when I believe Mr. Chen had a very clear legal case that should have been made. I could not help but think that the police were trying to make the point that arresting people was their job, not the citizen's job. Yes, it is their job to do law enforcement, and they do a very good job of it across the country, but they should never place the citizen in a secondary or second-class role. Citizens, for whom the police work, should always be number one. This particular shop owner, Mr. Chen, up to that point in time, had not done anything wrong. He was just defending his own business. I do not know how the police did not see that. I hope the police understand my words as not being critical of their ongoing work on behalf of all of our communities, but their work in connection with prosecutors ought to be well based on the law.

This legislation seems to be a fix for the section of the Criminal Code that pertains to the facts of this case. Even though I do not feel that it was necessary, I accept that we can amend the code for that.

Accompanying this statutory amendment is a whole rewrite and codification of the law of self-defence under the Criminal Code. As I said earlier, if it is not broken, why are we trying to fix it?

I read one of the sections and it bothered me a bit. I will read the relevant words:

A person is not guilty of an offence if

(a) they either believe on reasonable grounds that they are in peaceable possession of property or are acting under the authority of [some who is]...;

(b) they believe on reasonable grounds that another person...is about to enter...the property...;

(c) the act...is...for the purpose of...preventing the other person from entering the property...;

(d) the act committed is reasonable in the circumstances.

There are many private properties In a big city. I cannot imagine all of the complications that will arise when we codify this and try to figure out what is reasonable and what is not, how much force someone is allowed to use before somebody steps off the public sidewalk, where the property line is, is it an individual or a corporation that owns the property, is it a condominium corporation, is it a landlord or is it rented property.

The government has not explained why it feels the need to rework and codify these common law provisions in the Criminal Code. The danger in doing it are that it will codify a part of the common law but not all of it or it will go too far, or it will not think of every fact situation in having codified the part of the common law that seems to be working reasonably well generally for us. By codifying it, the government is preordaining and structuring a result involving a sequence of facts that nobody ever thought of. We would then have to amend the code again because nobody ever thought of that particular set of circumstances.

I will be looking for answers from the government. It really has not stated why it felt it was necessary to write these new sections, to codify the common law self-defence provisions in the Criminal Code.

The minister said that the list of factors codifies well-recognized features of many self-defence situations and will help guide judges and juries in applying the new law. Is it new law or is it just old law codified? The government should tell us what needs to be fixed before we walk down this road of codifying something that has worked pretty well for us under our Constitution the right of self-defence. Everybody has a pretty good gut feeling for what it is and it has worked for us for over 100 years, maybe even 200 or 300 years.

I will be looking for those answers in the debate and I will be scrutinizing this bill very carefully at committee.

Citizen's Arrest and Self-defence ActGovernment Orders

4:35 p.m.

NDP

Don Davies NDP Vancouver Kingsway, BC

Mr. Speaker, I know my hon. colleague said that he was seeking answers to why the government has added what appear to be unnecessary provisions to this bill. I will suggest a possible answer for him and I would like his comment on it.

The issue that spawned this was when Mr. Chen arrested someone after the commission of an offence but within a reasonable time. My colleague from Trinity—Spadina quickly drafted a private member's bill, Bill C-565, which dealt exactly with that scenario. It would have amended the Criminal Code to permit a citizen to arrest someone, not only during the commission of an offence but within a reasonable time. Had we stopped there, the problem would have been solved.

However, if the government had adopted that common sense solution, it would have given the New Democrats credit for fixing the solution, which it could not tolerate. Instead, it had to draft a bill to add two further and unnecessary aspects to this bill, which is to radically alter the way we deal with self defence of person and property in this country.

I would submit for my hon. colleague that the reason the government did this was that it did not want anybody else in this House, be it the Liberal Party, the New Democrats or the Bloc, taking meaningful measures that protect community. In the government's view, it is the only one that can do that. Of course, Canadians know that is not the case.

Could my hon. colleague comment on that as being a potential theory as to why the government added two very unusual aspects to this bill that were not called upon by the situation of Mr. Chen and which cause more confusion than any solutions they offer?

Citizen's Arrest and Self-defence ActGovernment Orders

March 7th, 2011 / 4:35 p.m.

Liberal

Derek Lee Liberal Scarborough—Rouge River, ON

Mr. Speaker, I kind of agree with the hon. member as he described the lead-up to this. However, I am trying to put rationale to this initiative of the government to codify and legislate in relation to defence of property. I am speculating wildly, and forgive me if I am wrong, but the only thing I can think of is that the Conservative Party is a right wing party that has tried and failed and cannot find a way to put into our Constitution the area of property rights. A lot of people have sympathy for that type of initiative without defining it.

This is coming at us right out of the blue. I think it is the Conservatives' way of putting into statute something that enters into that envelope of protection of property rights. The only thing I can think of is that codifying self-defence provisions in the Criminal Code in relation to property, because they specifically mention it here, is their way of nudging that thing and pretending to be doing something in the envelope of property rights. That is about the only reason I can put on this, other than that I draw a blank. If I am wrong, I hope I am forgiven.

Citizen's Arrest and Self-defence ActGovernment Orders

4:40 p.m.

NDP

Don Davies NDP Vancouver Kingsway, BC

Mr. Speaker, I do note that the current Criminal Code does actually refer to “defence of person” and “defence of property”. In fact, section 38 is entitled “defence of property” and section 34 of the current Criminal Code deals with the common law defence that allows someone to repel an assault with reasonable force. I am not sure that is the answer.

When my colleague from Trinity—Spadina went to visit Mr. Chen and quickly drafted legislation that would solve the problem that Mr. Chen and all the small business owners across this country faced, what did the government do? Did it move that bill forward to fix that problem and stand up for the shopkeepers and small business owners of the country? No. The government sent the Prime Minister in to do a photo op with Mr. Chen, and then it went to the trouble of re-drafting sections of the Criminal Code that were not raised by this issue.

In the case of Mr. Chen, the issues of “defence of property” or “defence of person” were not raised. The only question we were talking about there was when is the appropriate time for Mr. Chen to make a citizen's arrest. Of course, he was charged, to Canadians' shock and horror across this country, because he made the arrest when the criminal returned to the store to hit him up again.

I would like my hon. colleague to comment on the scenario that the government simply does not want Canadians to know that parties on this side of the House also take community safety very seriously and propose very meaningful and helpful policies and bills to help achieve that goal.

Citizen's Arrest and Self-defence ActGovernment Orders

4:40 p.m.

Liberal

Derek Lee Liberal Scarborough—Rouge River, ON

Mr. Speaker, it is true that the government is not the only party in the House that has spent time on this file. I personally have spent quite a few hours on this file both downtown, in my office, on the phone, et cetera.

However, I would respond with one caution, and that is this. In attempting to codify, to define the common-law rights of self-defence in the way it has, by putting conditions and provisos in particular circumstances and situations, the government may actually be shrinking the rights of self-defence without knowing it. This is what we have to turn our minds to. In my view, it is an unnecessary Criminal Code amendment. The rationale for it is yet unclear.

I am looking forward to hearing those answers in due course.

Citizen's Arrest and Self-defence ActGovernment Orders

4:40 p.m.

NDP

Don Davies NDP Vancouver Kingsway, BC

Mr. Speaker, I want to chat for a minute about how the bill impacts the small businesses in the community of Vancouver Kingsway.

Vancouver Kingsway is a commercial centre made up almost entirely of small businesses. Up and down Kingsway, Victoria Drive and Nanaimo Street, thousands of small businesses are operated by families and individual proprietors who employ Canadians. They are the real drivers of the Canadian economy. Whether run by Vietnamese, Chinese, Filipino or South Asian families, the people in these businesses have told me that they are having difficulty staying afloat. In many cases, the HST has really hurt their businesses. Now we see the issue of them being subject to charges under the current Criminal Code for defending their own property.

I believe all of us in the House agree that we need to make changes to the Criminal Code. Does my hon. colleague agree with the New Democrats that we should split off the sections of the bill, which he finds controversial, and I agree with him, about defence of property and defence of person and pass the part of the bill that extends the right of someone to conduct a citizen's arrest within a reasonable time of the commission of the offence and, at all times, restrict that person to reasonable measures so the person is not justified in committing an assault on the alleged criminal? In his view, would that be a better approach to dealing with this matter?

Citizen's Arrest and Self-defence ActGovernment Orders

4:45 p.m.

Liberal

Derek Lee Liberal Scarborough—Rouge River, ON

Mr. Speaker, I can agree with him that it might be a good approach. I cannot bind my colleagues in the House or at committee, but it is one approach to getting rid of the whole truckload of potential issues involved in codifying the self-defence provisions of the Criminal Code.

My friend mentioned small business owners. There are thousands of them across the country, all of whom deserve the respect of police and Canadians in their communities. I am also thinking of other scenarios where there are big companies, firms and corporations and security guards, some of whom are armed. There are implications for those scenarios and personal property scenarios that we will have to think about now.

The average citizen is probably quite happy thinking that he or she is okay with his or her rights of self-defence. However, now the government must codify and change it. Therefore, we must think it through to ensure that we get it right for the ordinary citizen, whether he or she is dealing with a small shopping store, a big shopping mall, the big corporate-owned plot of land or the big corporate-owned ranch scenario, when it comes to trespassing and defence of property. I am suspicious that all of this is unnecessary.

Citizen's Arrest and Self-defence ActGovernment Orders

4:45 p.m.

NDP

Bruce Hyer NDP Thunder Bay—Superior North, ON

Mr. Speaker, it is my pleasure to rise in the House today to speak to the citizen's arrest and self-defence bill. As we know, a good portion of the bill, and the part that I want to talk about today, was originally put forward as part of a private member's bill by the hon. member for Trinity—Spadina.

I support her idea to enhance the ability of small businesses to protect their property through the mechanism of citizen's arrest. As a small business owner myself, I know all too well the enormous challenges that small businesses face across Canada.

I support passing the amendments to section 494 of the Criminal Code in the bill dealing with citizen's arrest to permit arrest without warrant and within “a reasonable period” rather than the present wording, which requires an arrest contemporaneous with the event. This change was originally introduced by the hon. member for Trinity—Spadina in her private member's bill as a result of an incident at a convenience store in Toronto, the Lucky Moose. The name of that store is well known, although it sounds like it should be a store in Thunder Bay—Superior North. The owner apprehended an individual, who had stolen an item from the store, some time after the theft had taken place. The amendment to section 494 has been supported, in principle, by chiefs of police across Canada, prosecutors and defence counsels.

Bill C-60 proposes compressing sections 34 to 42 of the Criminal Code, which deal with the defence of a person and property, into two new parts. The stated rationale is to clarify the laws on self-defence and the defence of property so Canadians, including the police, prosecutors and the courts, can more easily understand and apply the law.

The legislation would expand the legal authority for private citizens or persons with small businesses to make arrests within a reasonable period of time after they found a person committing a criminal offence either on or in relation to their property, ensuring the proper balance between the powers of the citizens and the powers of the police. It would also bring much needed reforms to simplify the complex Criminal Code provisions on self-defence and defence of property and clarify where reasonable use of force would be permitted in relation to the above.

The amendments to Criminal Code subsection 494(2) on citizen's arrest would authorize a business person or other citizen to make an arrest within a reasonable period of time after he or she found someone committing a criminal offence that occurred on or in relation to his or her property. This power of arrest would only be authorized when there were reasonable grounds to believe it would not be feasible in the circumstances for the arrest to be made by a police officer.

It talks about reasonable use of force. The legislation would make it clear by cross-reference in the Criminal Code that the use of force would authorized in a citizen's arrest, but there would be limits placed on how much force could be used. In essence, the laws permit the reasonable use of force taking into account all the circumstances of a particular case. To be clear, a person will not be entitled to use excessive force in any citizen's arrest. That will continue.

There are some important considerations for us to take into account. A citizen's arrest is a very serious and potentially dangerous undertaking. Unlike a police officer, a private citizen is neither tasked with the duty to preserve and maintain public peace or, generally speaking, properly trained to apprehend suspended criminals. In most cases, an arrest might consist of either actually seizing or touching a person's body with a view to detaining him or her or using words where the person submits to the arrest. A citizen's arrest made without careful consideration of the risk factors may have serious, unintended physical or legal consequences for those involved.

When deciding if a citizen's arrest is appropriate, a small business people, or other citizen, should consider the following things: whether a peace officer is available to intervene at that time instead and their personal safety, or that of others, that might be compromised by attempting such an arrest. They should report information about the crime to the police instead of taking action on their own whenever possible. They should have a reasonable belief regarding the suspect's criminal conduct and ability to identify them. Last, they can and should turn over the suspect to the police without delay once that arrest is made.

Let us look at the current laws in this regard.

Under section 494(1), people may arrest a person whom they find committing an indictable offence, or a person, who on reasonable grounds, they believe has committed a criminal offence and is escaping from, and is freshly pursued by, persons who have lawful authority to arrest that person.

Section 494(2) of the Criminal Code, which is the provision proposed to be expanded by the bill, currently provides that anyone who is either the owner or in lawful possession of or has been authorized by the owner or the person in lawful possession of that property may arrest a person if he or she “find committing” a criminal offence on or in relation to that property.

“Finds committing” means situations where the accused is caught in the act, committing that offence. This concept extends to take into account a situation where the accused has been pursued immediately and continuously after he or she has been found committing the offence. Also, the existing law requires that when a citizen's arrest takes place, the individual must be delivered to a peace officer without delay.

Let us talk about self-defence and the defence of property as it relates to the proposed amendments. The new Criminal Code provisions are being proposed to clarify the laws on self-defence and defence of property so Canadians, including the police, the prosecutors and the courts, can more easily understand and apply the law. Clarifying that law and streamlining statutory defences may assist prosecutors and police in exercising their discretion not to lay a charge or proceed with a prosecution.

Amendments to the self-defence provisions would repeal the current confusing law and create one new self-defence provision. It would permit people who reasonably believe they or others to be at risk of the threat of force or acts of force or damage to their property to commit a reasonable act to protect themselves, their property or others.

As I said before, I am a small business owner and I know all too well the huge challenges of many kinds that small businesses across Canada face. Therefore, I would like to raise some of the reasons that are collateral and that bear on the need for small business people to feel more empowered by the Government of Canada and to make their businesses more viable. They are struggling. Small businesses across Canada today, the small economic engines across Canada, are struggling through our recession because of a lot of red tape and a growing tax burden as we shift taxes off of large corporations and onto small corporations.

Small business people are straddled with usurious credit card merchant fees. I and my party have talked about this issue, again and again, the need to get banks and credit card companies off the backs, out of the pockets, the bank accounts and the wallets of small business people across Canada.

Small business people pay fees to the credit card companies that are above and beyond what it costs them to provide average Canadians with the service that is required. Small business people are left with no choice but to pay those usurious fees because they cannot run our businesses without those credit cards. So far the government has not gone to bat to protect small businesses from usurious credit card companies and banks.

Another challenge that small businesses face is a government which has been constantly shifting tax burdens, tax responsibilities off large corporations and onto the backs, not only of average Canadians, but onto the backs of small- and medium-size business firms.

In the late 1970s, the marginal corporate tax rate on large corporations in the U.S. and Canada was the same, at 36%. Today it is still 36% in the United States, but through the Mulroney years, the Chrétien years, the Martin years and now under the current government, those taxes have been reduced. They are soon to be 15% and the government, through the HST, is shifting them onto average Canadians and the burden of collecting and doing the paperwork for that will fall on small businesses.

It has also been shifted through things like the EI premiums which are about to increase again, increasing the cost to Canadian workers and Canadian small businesses.

Despite the fact that small businesses are usually locally based and invest and hire in their local communities, governments, and the current government especially, have favoured large corporations with across-the-board tax cuts, whether they make sense or not, whether they result in investment in Canada or not, whether they keep jobs in Canada or not.

When the NDP government came in 11 years ago in Manitoba, it made a promise to take the tax burden off small businesses because it understood that it is small businesses which are creating jobs. In fact, 80% to 90% of all the jobs created in Canada for many decades have been created, not by big businesses, but by small businesses. The Manitoba government kept its promises and reduced the provincial corporate tax rate on small businesses from 11% down to zero. The government and small businesses in Manitoba have demonstrated through growth, prosperity and job creation, that this has been the economic engine which has made Manitoba the most prosperous province in Canada today with balanced budgets, high employment and weathering the recession almost without even noticing it.

Small businesses in our communities take many forms, from mom and pop convenience stores on the corner all the way up to significant engineering and consulting firms and software developers. In fact, 76% of small- and medium-size businesses earn revenue between $30,000, all the way up to close to $500,000 a year. Now, $30,000 may seem small to us, but it is important to a family that uses it to grow its business and support its children. Small businesses are major economic engines, pint-sized engines which jointly drive the economy of Canada and are growing, not shrinking, and staying, not leaving the country or leaving town, and adding jobs, not cutting jobs.

It is about time that our small businesses got more help and more respect from a government that is happy to hand out billions of dollars in senseless, unnecessary tax cuts to oil giants, big banks and big insurance companies.

Small businesses represent almost 98% of the total number of business establishments in Canada. That number comes from the Canadian Federation of Independent Businesses. Small- and medium-size businesses employ 55% of all the working individuals in Canada.

Service jobs are important. Government jobs provide important services across the nation. Union jobs in large companies are important to our economy. It is true that many of the dollars generated by large corporations do trickle down to small businesses in the community. But, to reiterate that number, over half of the direct jobs in Canada are jobs that relate to small- and medium-size businesses.

Small- and medium-size businesses are taking the lead on research and development in Canada, which is something we desperately need if Canada is to address our perennial shortfall in productivity and competitiveness.

Large corporations in Canada spend a piddling 0.8% of their revenues on research and development. Small- and medium-size firms spend an astounding 5.8%, almost 6%, of their revenues on research and development.

I am an evolutionary biologist and the best evolutionary strategy through a billion years was a main gene pool with outlier populations. It is in those outlier populations where progress, where evolution occurs, feeding that genetic material into the main gene pool.

Similarly, small businesses are the places where the new ideas come from. Steven Jobs and Bill Gates at one time were small businessmen. Look where some of these small businesses can go. We need to support them and help them.

Small businesses are exporters. They play a big role in keeping Canada a trading nation. Over 85% of all Canadian exporters are small- and medium-size businesses.

These facts and statistics show how vital small- and medium-size firms are to Canada's economy and to the future of every Canadian and every member of Parliament. We work for the Canadian taxpayers and increasingly, the Canadian taxpayers are average Canadians and small- and medium-size businesses.

Small- and medium-size businesses create jobs right here at home. They inject dynamism into the Canadian market, which we desperately need and they invest their revenues back into our communities. They do not export those investment dollars back to the United States. They do not pay them out in ridiculously over-the-top, obscene CEO salaries which then get stuffed into tax shelters in the Caribbean and in Panama.

Canada needs to do more to support our small- and medium-size firms. We should be encouraging the entrepreneurial spirit which in the past has driven so many Canadians to take a chance on a great idea and see where it goes.

Whether in Thunder Bay, Geraldton, Longlac, Marathon, Schreiber, Terrace Bay, Red Rock, and so on, in my riding of Thunder Bay—Superior North, we need to help and grow our small businesses, particularly given the role that the government has played through NAFTA, softwood lumber and non-help in the recession to our forest industry in northwestern Ontario. To a large extent, it is small businesses which have hung on bravely and are saving us.

Citizen's Arrest and Self-defence ActGovernment Orders

5:05 p.m.

Conservative

Steven Fletcher Conservative Charleswood—St. James—Assiniboia, MB

Mr. Speaker, I rise on a point of order. I have listened to the member for quite some time now. I question the relevancy of his comments. We are supposed to be talking about Bill C-60. He is talking about things that are not related.

Citizen's Arrest and Self-defence ActGovernment Orders

5:05 p.m.

Conservative

The Deputy Speaker Conservative Andrew Scheer

I would urge the member to be mindful of the subject matter of Bill C-60. He has about a minute left, so perhaps he could bring his remarks back to the subject matter of the bill.

Citizen's Arrest and Self-defence ActGovernment Orders

5:05 p.m.

NDP

Bruce Hyer NDP Thunder Bay—Superior North, ON

Mr. Speaker, it is clear to me and clear to most, other than the government, that any way we can help small businesses helps to offset the many other liabilities that have been placed upon them by the government.

We should not be burdening our small businesses with unfair taxes, exorbitant fees, mountains of paperwork and the inability to deal with crime that affects their business.

I urge all members in the House to support our small business people by giving them another important tool to protect their property and their businesses.

Citizen's Arrest and Self-defence ActGovernment Orders

5:05 p.m.

Liberal

Brian Murphy Liberal Moncton—Riverview—Dieppe, NB

Mr. Speaker, I listened to the entire speech of my friend and his laudable words about small, medium and larger enterprises. I know from his background as an evolutionary biologist that we were all hoping that the remarks would evolve into commentary about Bill C-60.

I do not want to take too much of his time in asking my question, so what does he think about Bill C-60, with respect to self-defence and a citizen's arrest? Does he think it goes too far as drafted? Is it beyond what his colleague from Trinity—Spadina had suggested, or is it the right fit ?

I will give him all the time to evolve an answer on that one.

Citizen's Arrest and Self-defence ActGovernment Orders

5:05 p.m.

NDP

Bruce Hyer NDP Thunder Bay—Superior North, ON

Mr. Speaker, as an evolutionary biologist I also know that evolution did not all occur in the past; it is an ongoing process. It is happening today, it is happening this afternoon and it will continue to happen as long as there is life on earth.

The portions of this bill that were drafted by the hon. member for Trinity—Spadina are just right. I am still looking at the rest of the bill and thinking about the important balance between the rights of citizens, the rights of small business people and how important it is to make sure that those rights are not exceeded and that we do not stray into areas that are dangerous for them or society.

Citizen's Arrest and Self-defence ActGovernment Orders

5:05 p.m.

Charleswood—St. James—Assiniboia Manitoba

Conservative

Steven Fletcher ConservativeMinister of State (Democratic Reform)

Mr. Speaker, as an evolutionary biologist I am surprised that it has taken the member so long to figure out that crime is bad and bad people need to be arrested and that good people need to conduct their affairs conducive to the Canadian way of life. Bad people go to jail and good people help keep the bad people in jail.

I wonder if the member's evolution as a member of Parliament coincides with the advanced thoughts of his constituents rather than the de-evolution which often occurs when the NDP talk about hugging a thug rather than keeping the thugs in jail.

Citizen's Arrest and Self-defence ActGovernment Orders

5:05 p.m.

NDP

Bruce Hyer NDP Thunder Bay—Superior North, ON

Mr. Speaker, I will give a serious answer to a sarcastic question.

As a biologist I know that much of evolution is not about competition only. It is also about co-operation. Charles Darwin was brilliant but he did not go quite far enough. Social Darwinists throughout a century and now alive and well on that side of the House believe that competition, tooth and claw, and winners and losers make evolution and government work.

People in this party and I believe that more often it is about co-operation between different aspects of society helping everybody who wants help. There are a few who are hopeless, but most of the people in prisons today are going to need our help to become functioning members of society.

The idea that it is only about punishment is unfortunately antediluvian.

Citizen's Arrest and Self-defence ActGovernment Orders

5:10 p.m.

NDP

Don Davies NDP Vancouver Kingsway, BC

Mr. Speaker, my hon. colleague from Thunder Bay—Superior North represents not only his constituents well but many of the small businesses that operate in his riding.

I am really quite surprised at the questions from members of both the Liberal Party and the government. They are questioning the bill's relevance to small business.

The bill's genesis was based on a store owner who was defending his property. One of the reasons he was defending his property was that he was so frustrated at the pilfering going on at his store. Why was he concerned about that besides the obvious problems facing his business? He was concerned because small business owners in this country operate on tight margins. If we listened to Mr. Chen speak at committee, which I am sure most members of the House did, they would have heard him say just how marginal his business is and how important it is that he have the ability to protect his property.

To hear the Liberals and the Conservatives just dispense with that and wonder why the bill has anything to do with the precarious situation of small business owners across this country is quite surprising to me. I would like to congratulate my hon. colleague for bringing that important aspect of the bill to the attention of the House.

I would ask him to explain how businesses are operating in his riding and how they may react to this bill before the House.

Citizen's Arrest and Self-defence ActGovernment Orders

5:10 p.m.

NDP

Bruce Hyer NDP Thunder Bay—Superior North, ON

Mr. Speaker, the hon. member for Vancouver Kingsway was a successful lawyer for many years. He understands, as a justice here in Canada explained, that the middle class most of the time can no longer afford to go to court and defend themselves and that we see increasingly laws and justice for only the rich and powerful.

It is sad when stockbrokers and bankers steal and defraud. It is sad when politicians sometimes lie and steal and misrepresent the law. The worst these people get is a slap on the wrist or they never are fully prosecuted. Middle-class business people often do not have the resources to properly defend themselves in the courts.

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5:10 p.m.

Liberal

Brian Murphy Liberal Moncton—Riverview—Dieppe, NB

Mr. Speaker, I am going to use most of my time speaking about Bill C-60. I will open by summarizing what I think the pith and substance of the bill is, namely, two sections of the Criminal Code.

The Criminal Code is a large book that stuck together all kinds of laws in the 1890s after Confederation. The book is that old. It is a compendium that started out with a bunch of general provisions, including regarding cattle stealing, treason and things that we do not see a lot of these days; high treason indeed is not something that we often see. The code has often been amended, however, and appended to it are all of the fact situations that we have lived through as a country and community over our great history.

What we are seeing today is a call for two things, the modernization of the code with respect to two parts of a citizen's life, that of self-defence against an offence and the powers they may have on behalf of the state in arresting or stopping the action of a fellow citizen. Thus the bill deals with what we commonly call self-defence and citizen's arrest. We are looking either to modernize the general provisions that have been around a long time and/or are reacting to a specific fact situation or a number of them that have happened in this country.

We have to step back as parliamentarians and say that it is always good to modernize or harmonize the law, in this case the code and its antiquated language, with respect to what is happening now. There is no question about that. It is not always a good thing to have the Criminal Code or any law chase after a particular fact situation, no matter how compelling the reason is.

Whatever is enacted to react to a specific situation had better go through the prism of the general welfare and good of communities so that it fits every other fact situation in these two important areas of self-defence and citizen's arrest.

The two aspects, self-defence and citizen's arrest, are so different from each another that they are about 400 sections apart in the code. The self-defence provisions, which are among our oldest provisions, are in the 30s and 40s sections of the code, and the so-called citizen's arrest provision is way up in section 494. They are very different. However, they are tied together in this instance here, because what we are really reacting to as parliamentarians are a number of fact situations where specific individuals, shopkeepers or small businessmen or homeowners, have taken action to protect either their property or themselves and, in many instances, detained individuals.

It is extremely important to look at it from the point of view of asking people that if this were to happen to them, would they want that protection in the law. Let us look at both citizens. There is a citizen who did something wrong by taking goods from a shopkeeper, from another citizen, which is wrong. If we were to say there were nothing in the code that covered that theft or public nuisance, I would say we ought to put something in it.

However, let us not look at this in isolation. There are various sections covering these. If there is theft, nuisance, harassment, racist acts or violent acts, these are now covered by the Criminal Code. Let us be clear about that. There are provisions that cover the fact situations we have all been listening to and talking about today.

The question is, in the absence of action by the state, should a person be able to stop or prevent the action as it affects his or her personal safety or property?

Again, those sections are now in the code. They do allow citizens to take the law, as we say quite frequently and pejoratively, into their own hands. The Criminal Code now provides for that. Anyone who says there are no provisions in the code for a person to apprehend and stop another citizen from doing something is not telling the whole truth. Those provisions exist.

The issue is how far should those powers go.

This is a delegation of a state power. The state has the right, and the obligation in some cases, to arrest an individual who is breaking the law. In the section in the 490s, as I mentioned, about citizen's arrest, a citizen who is not a peace officer can also undertake that task that has not been performed by a peace officer.

We would expect, therefore, that if that were to be the case, it would have to be done with great care, greater care than by a peace officer, who also has to provide reasonable grounds for arresting someone and to abide by all the laws, including our Charter of Rights and Freedoms. The onus is even higher on someone who takes the citizen's arrest route to protecting him or herself, or property.

What we are trying to do here is have a debate as to whether the law as it sits is adequate, or whether we need to expand that law so greatly that judges and police officers would even have some doubts as to whether it would lead to increased vigilantism and the taking of the law into one's own hands.

I do not think there is anyone on any side of the House who is going to say that this is a simple question. It is a question of degree. The degree to which someone takes the law into their own hands on behalf of the state to protect themselves or their property is not a simple question; it is a metered question, a question that depends very much on the facts.

There was a saying in my days of reading the law that cases do not stand for grand propositions but turn neatly on their facts. That is really what we are talking about here. In the case of a shopkeeper in Toronto who was terrorized and humiliated and who had seen his livelihood, and perhaps his own personal safety, put in peril on many occasions, he decided that he knew who the perpetrator was and that he would apprehend the perpetrator after the fact.

What we are finding here is that if that action had been taken at the time of the incident, he would not have been charged with unlawful confinement. It is academic, but he probably would have had every right under the section as it now exists to take his citizen's arrest role seriously and have it ratified by police officers, prosecutors and the judges, if it have ever gone that far.

When this case really first came up, I knew many members of Parliament, and not just from the greater Toronto area and all parties, who felt very badly that this shopkeeper who had merely been defending his security had been charged. I do not think there is a person who did not feel for that citizen of Canada.

The question at that time seemed simple, I suppose, to me. I thought that at some point, on the volition of the government or that of the opposition or someone else's, we would change the Criminal Code, as I mentioned in my first remarks, so that it would evolve into a modern document. I thought that we would respond to this by suggesting that a reasonable time could elapse from the time of the offence to the time of the apprehension and that we would provide not just that defence but also the ability to apprehend someone under the citizen's arrest provision. I really thought that was maybe all we would be facing with respect to this whole area.

Let us remember that this could not have been a burning issue for the government before that incident in Toronto. Let us recall, as we do profoundly on this side, that the government has been in power for over five years and has had multiple opportunities to bring forward justice legislation. It has brought forward many justice bills that it has killed itself. At no time until Bill C-60, some five years after coming into power on a law and order agenda, a putative or Pyrrhic law and order agenda, did the government do anything with respect to these two issues in the code. It did nothing. These were not burning issues.

From year one to year five of a mandate, there is a fact situation that all members of Parliament react to in a positive way. That is, they want to help, and the Conservatives came forward with Bill C-60. However, the bill does not make that little change to the code that would fit the fact situation and make the criminal law more modern and responsive. The bill perhaps goes too far, which is the argument being made as bill moves along to committee.

I say this because the Prime Minister visited Chinatown in Toronto, as reported in The Toronto Star, where he said that previous governments had refrained from stiffening the law because:

they [had] wanted to avoid vigilantism, which is a genuine threat to the rule of law.

However, he added that many Canadians believed that “the right balance [had] been lost in the justice system“ and that there was a sense that criminals were protected at the expense of victims.

I had my researcher look back to see if there were any quotes specifically on this aspect of vigilantism and self-defence and the provisions for citizen's arrest. However, there had been no comments made by the Prime Minister or his justice minister on reforming this law, until this fact occurred.

So we have a Prime Minister who is commenting on previous governments. I would say that the indictment is against the Prime Minister and his various justice ministers who, for five years, have done nothing about this problem, which they seem to think existed for some time. It is a bit misleading for the Prime Minister to say that in a political scene, of course. However, he also wanted to make the police feel secure by saying at that time that the:

—police are the first line of protection against crime—

—which everyone would agree with—

[And that] Police officers will continue to have the responsibility to preserve and maintain public peace as Canada’s first and foremost criminal law enforcement body.

That is fine, but what this act would go ahead and do is perhaps to give people the view that as citizens they are now going to have more powers to prevent wrongdoing as they see it on their property. This is not me saying this, but the deputy chief of the Halifax Regional Police service, not that of a minor, inconsequential backwoods or half-professional force but one of the best police forces in Canada. The deputy chief of the Halifax Regional Police said of the law as it is that:

It doesn’t give any great power of citizens to go out and grab people on the street.

He said that as part of a round table discussion with the Minister of Justice at the time. Throughout the article by the Canadian Press reporting what he said, he was very cautious in suggesting that any accretions to public arrest powers should be exercised very conservatively, which is not a word that I use very often. He said that these were not matters that people should engage in without some caution. He said that the law enforcement agencies had enough of a challenge in teaching experienced officers how to interpret the law, and wondered if it meant now that they would have to go out and give citizens courses on how to perform a citizen's arrest.

Experts outside the government and outside of Parliament have also recognized that the rules around self-defence, the extension of citizen's arrest, tell us that if someone performs an action in reaction to an assault or an invasion or perceived invasion or threat to personal property, he or she might act in a physically, emotionally, or other harmful way to another person.

The person would then have to have a defence to not be charged or convicted, and that is generally in those provisions that I mentioned in the low 30s and 40s of the Criminal Code on self-defence.

The idea that one could tinker with self-defence on a situational basis is rather appalling. The police officers who participate in round tables do not come to those round tables with written amendments to the laws that the government then puts up on the television screen the next day after consulting with Department of Justice lawyers.

I heard today at committee that a number of provincial prosecutors who were talking about amendments to a bill were not consulted on the bill as presented. There is something wrong when ministers of justice and prime ministers do not consult police officers and crown prosecutors when amending legislation.

We have had experts from the police and prosecutorial communities say that because each case is unique with widely diverse and sometimes contradictory evidence, no broad policy statement is intended with respect to the use of a firearm in the defence of one's home, for instance. This was in response to a situation where certain charges were dropped against a person who was defending his home. This tells us that these are very complex issues.

While the government has put forth a bill that seemingly reacts to a very small set of circumstances, it has in fact opened up a Pandora's box that must be studied very vigilantly and diligently at committee to make sure that the box is not too wide open.

As I said, everyone has sympathy for the shopkeeper in Toronto. This is one of those issues that unifies all parties. I heard the NDP speak eloquently about the situation, as have the Liberal Party and the Conservative Party. However, instead of bringing a bouquet, the Conservatives bring an entire flower garden to the issue. It is confusing. Are we just responding to a particular set of circumstances for which minor amendments to the code would suffice, or are the Conservatives trying to open up a very dangerous Pandora's box that might lead certain people to believe that the law of Canada has changed?

I saw the Prime Minister on television for the usual 6.8 seconds. He said that we were allowed to take that law, and we do not really need the charter, but if someone goes across the corner of our property with a Ski-Doo, we can defend that.

This is not an urban or rural issue. It is not a male or female issue. It is not an issue that divides on the basis of race, religion, or in what part of the country one lives. It is the Criminal Code of Canada and it has to apply in every fact circumstance.

The good people of Grand Manan Island in my province of New Brunswick had a problem several years ago. People from the mainland were going there and selling drugs to their young people. They frequented or lived in a house which the community felt was the centre of this activity. It is alleged that the people got together as a community and burned the house down and ran those people off the island.

As a father of three young children and a former mayor of a city, I understand local politics. I understand about protecting the community. On one level we would say, good for them that they cleaned up the community. However, we might recoil and think that if an illegal activity was going on, where were the police? Why were the police not able to do the job that should been done?

We might ask the question of the police and they might say that they are severely under-resourced, that the troops the RCMP in rural New Brunswick were supposed to get did not come, that the resources they are supposed to have are not there and it is a rural and remote community and they just cannot enforce the laws that are on the books. We would have an understanding of that.

However, to open up the law to let people burn other people's houses down is not necessarily a solution. In the trial sentencing, if there was wide open judicial discretion in this case, a judge might take into consideration the volition of the community and, while saying it was wrong, be a little merciful on the sentence. In fact, that is what happened in my province and it showed that the system worked. It is under-resourced, but it works.

However, not all of this law is good law and we will take a good look at it at committee. I want to commend those who spoke in favour of the good provisions that helped the store owner in Toronto.

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5:30 p.m.

Liberal

Rodger Cuzner Liberal Cape Breton—Canso, NS

Mr. Speaker, throughout his entire speech, my colleague did not mention a single word about small business in Canada, in contrast to the speech that was delivered earlier by a member of the NDP.

If we proceed with this, is there a greater risk of putting citizens in harm's way? We have highly trained police forces. In some of the police shows on television, we see police officers going after somebody who is totally enraged. The person may be on drugs or in an unsettled mental state for whatever reason. They are very intense situations. Are we placing citizens at risk if we proceed with this legislation?

Citizen's Arrest and Self-defence ActGovernment Orders

5:30 p.m.

Liberal

Brian Murphy Liberal Moncton—Riverview—Dieppe, NB

Mr. Speaker, in fact, I did mention small businesses and shopkeepers. I just did not spend 20 minutes on that sector of the economy and I apologize because I know my friend wanted to hear more on that.

His principal point is whether this is opening a Pandora's box where vigilantism might be encouraged. As drafted, let us hear what the experts, police, prosecutors, professors who study this area of the law, and victims have to say on this. Let us hear from victims whose loved ones have been killed mistakenly, whether by police officers or private citizens who took the law into their own hands. Let us hear from those victims.

The government is all about victims. Let us hear from all stakeholders on this issue and decide whether this is going too far for public political purposes or whether there can be a balance achieved with respect to righting and modernizing some of the code provisions that did not protect the storekeeper in metro Toronto.

Citizen's Arrest and Self-defence ActGovernment Orders

5:35 p.m.

Charleswood—St. James—Assiniboia Manitoba

Conservative

Steven Fletcher ConservativeMinister of State (Democratic Reform)

Mr. Speaker, I would like to thank the member for actually speaking to the bill. That helps with the debate.

I wonder if the member could comment on the situation that led to the introduction of this bill. The shopkeeper ended up being re-victimized when, after being robbed, the police charged him. That is double victimization. The robber got off. That is ridiculous.

I wonder if the member could at least agree that the person who does the crime should do the time and the people using common sense and good judgment to apprehend the criminal should not be penalized for that.

I wonder if the member could at least agree that the thrust of the bill is not to punish victims of the original crime but to keep the bad guys away from the citizenry.

Citizen's Arrest and Self-defence ActGovernment Orders

5:35 p.m.

Liberal

Brian Murphy Liberal Moncton—Riverview—Dieppe, NB

Mr. Speaker, there is a very specific amendment to the citizen's arrest portion of the code which would basically correct what was wrong in this fact situation.

Yes, it is wrong that the person who did the crime did not do the time. He was let off because he was unlawfully confined in that Mr. Chen allegedly confined him after the event occurred.

As we see in the government bill, clause 3 would amend subsection 494(2) to add very important words to say that the owner or a person in lawful possession of property may arrest a person if “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”.

That is the specific fact situation that would have assisted in the case of Mr. Chen. I say bravo on one section of five pages and we will take a look at the rest.

Citizen's Arrest and Self-defence ActGovernment Orders

5:35 p.m.

NDP

Nathan Cullen NDP Skeena—Bulkley Valley, BC

Mr. Speaker, I listened with great interest to my colleague.

When we look at the aspect of citizen's arrest, one of the problems we have seen with the law is the time limit component, which one part of the bill deals with quite explicitly.

From the member's speech and others from the Liberals, the Bloc and certainly from the New Democrats, because it was the member for Trinity—Spadina who came up with the suggestion, and the member for Windsor—Tecumseh, who will be speaking soon, it seems there is agreement.

The idea was to extend the time allowed for someone to make a citizen's arrest, so that if the alleged theft happened at two o'clock and the person missed the offender right at that moment, at three, four or five o'clock the person would be able to make that citizen's arrest if the person was not able to secure some support from the police. That is the piece where we seem to have agreement from the other parties, and obviously from the Conservatives, because they put it in the bill, although they took it from the New Democrats which is fine.

Can we not simply fast-track that element of the bill that does not seem to require a great deal of study or hearing of witnesses? We could then study the other two parts that have more nuance on how they get applied. Would that be something the Liberals would support? Since the Liberals are clearly in support of the case of Mr. Chen and others like that around the country, a little more permission on the time aspect would be supported by all members in the House and we could get this bill done even before the budget is seen by this place.