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.
Mark Warawa Conservative Langley, BC
Mr. Speaker, the last petition has to do with life.
The petitioners note that Canada and the Canadian Charter of Rights and Freedoms respect the human rights of everyone who has the right to life.
Therefore, the petitioners call upon Parliament to pass legislation for the protection of human life from the time of conception until natural death.
Scott Simms Liberal Bonavista—Gander—Grand Falls—Windsor, NL
Mr. Speaker, I rise again on the issue of employment insurance to present two petitions to the House.
Many workers on the coast of Newfoundland and Labrador are working seasonally, primarily in fishing plants and the tourism sector. They are asking that the pilot projects introduced in 2005 be continued. These projects continued until June, but these workers would like them to be made permanent, which would leave the companies able to hire them and the employees in a better position.
The petitioners come primarily from Birchy Cove, Newman's Cove, Amherst Cove, as well as Bonavista.
The residents of Bonavista also need a wharf and they need it soon in the area of the Ocean Choice International Plant.
John Rafferty NDP Thunder Bay—Rainy River, ON
Mr. Speaker, I rise today with two petitions to present.
The petitioners call upon Parliament to affirm that pension benefits are in fact deferred wages, to elevate defined benefit pension plans to secured status under the Bankruptcy and Insolvency Act and the Companies' Creditors Arrangement Act, and to pass into law any legislation before it that would achieve these objectives. This petition is signed by hundreds, and perhaps even thousands, of Canadians.
I remind those present here today that these petitioners and millions of other Canadians across Canada will be watching very closely this coming Wednesday when Bill C-501 comes before the House for a vote at report stage.
Peter Stoffer NDP Sackville—Eastern Shore, NS
Mr. Speaker, I rise today to present a petition signed by approximately 3,000 to 5,000 individuals from across the country.
The petitioners indicate that the Internet is an unregulated pipeline of child pornography and child exploitation. My own private member's bill deals with a lot of the things this particular petition is asking for.
The petitioners call upon Parliament to enact strict child pornography laws to protect our children once and for all from the evils and dangers of the Internet.
The Speaker Liberal Peter Milliken
The hon. member for Hochelaga has already spoken during the hearing of petitions. He is supposed to present all of his petitions at the same time. Does he have the unanimous consent of the House to present another petition at this time?
Daniel Paillé Bloc Hochelaga, QC
Mr. Speaker, I would like to apologize to you as well as to the hon. member for Abitibi—Témiscamingue. I am pleased to present a second petition, which is every bit as important as the first. I had forgotten about it. I am sorry.
Jim Maloway NDP Elmwood—Transcona, MB
Mr. Speaker, my petition is signed by dozens of Canadians and calls for an end to Canada's military involvement in Afghanistan.
In May 2008, Parliament passed a resolution to withdraw the forces by July 2011. The Prime Minister, with much help from the Liberal Party, broke his promise to honour the parliamentary motion and refuses to put it to a vote in the House.
Committing 1,000 soldiers to a training mission still presents a big danger to our troops and an unnecessary expense when our country is faced with a $56 billion deficit. The military mission has cost Canadians more than $18 billion so far, money that could have been used to improve health care and seniors' pensions here in Canada.
In fact, polls show that a majority of Canadians do not want the military mission to continue beyond July 2011. Therefore, the petitioners call upon the Prime Minister to honour the will of Parliament and bring the troops home now.
Questions on the Order PaperRoutine Proceedings
Regina—Lumsden—Lake Centre Saskatchewan
Conservative
Tom Lukiwski ConservativeParliamentary Secretary to the Leader of the Government in the House of Commons
Mr. Speaker, I ask that all questions be allowed to stand.
The House resumed consideration of the motion that Bill C-60, An Act to amend the Criminal Code (citizen's arrest and the defences of property and persons), be read the second time and referred to a committee.
Paul Szabo Liberal Mississauga South, ON
Mr. Speaker, before question period I had set out some arguments that reflected the concerns already raised by some hon. members that this bill may not be a good start in terms of the intent. There may be good reasons that this bill should have been referred to committee before second reading to allow some expert testimony from witnesses to assist in making whatever changes they felt necessary before it came to the House for debate.
I pulled up the minister's speech from Friday on this matter, and it strikes me that this has been going around for a long time. In fact, we are talking about an incident that took place in 2009. Mr. Chen was acquitted on February 17, 2011. It has taken a very long time for this bill to be received. I think it was only on February 17 that the bill was tabled at first reading, and here we are in March.
I wonder why the minister would not take the opportunity for a bill that includes, in the opinions of a number of hon. members, potentially some confusing areas that may be very problematic. The factors that would determine whether or not there was a reasonable amount of time, a reasonable expectation, et cetera, are very long and when these incidents occur on a snap basis, the public at large will not be familiar with them. This bill may encourage people to feel empowered that they can undertake a citizen's arrest without knowing that they may very well still be charged. Ultimately, it would be up to the courts to determine whether or not they met the test under the bill. This is not a black and white situation.
Given that is the case, the only explanation I can think for why the minister did not refer the bill directly to committee was that the justice committee right now, as usual, is bogged down with several pieces of legislation. Considering the average time it would take to discharge those pieces of legislation, it is likely that this particular bill would not come back to the House after committee until sometime in the fall. We may not see this bill go to the Senate until the Christmas break, and then the Senate will deal with it at some point.
That is an awfully long time, even though it still presumes that the bill would go through the process very expeditiously. However, I do not believe that would be the case. I much suspect there will be substantial amendments sought at committee, first of all, to delete a number of clauses and, second, to add others, which may be challenged as beyond the scope or intent of the bill. There may be other problems with it.
As much as I hate to admit it, this particular case has been used as a bit of a political football.
I was reminded by another member that the member for Eglinton—Lawrence introduced a private member's bill on June 16, 2010, after Mr. Chen was acquitted and when the government still had not taken action.
On September 27, 2009, the minister of immigration actually visited Chinatown for a photo op and made an empty promise to raise the issue of amending the Criminal Code with the government.
On June 16, 2010, after nine months of inaction, the member for Eglinton—Lawrence introduced his private member's bill.
On October 10, 2010, Mr. Chen was acquitted. I was in error when I said it was February 2010; it was actually October 2010.
On November 4, 2010, the member for Eglinton—Lawrence held a press conference calling on the government to adopt his bill, Bill C-547.
On January 21, 2011, the Prime Minister met with Mr. Chen and promised legislation would be introduced soon.
On February 15, the government put a notice on the notice paper by the Minister of Justice that there would be a bill. It was in fact tabled in February and debated in the House for the first time on Friday.
This was an important case of clarification necessary in the Criminal Code for Mr. Chen and for other citizens who are victims of robbery, but there are certain elements that have to be taken in the law.
For most Canadians, it is a slam dunk. They are going to protect their property even if they have to tackle the guy, whoever he might be, and hold him until the police come. They do not think about whether or not they are using unreasonable force. If they happen to see this person the next day and recognize him they will tackle him. They are not sure whether that is a reasonable period of time.
That is precisely what the bill deals with, the various factors on how the courts are going to be asked to interpret our intent for this legislation. From listening to a couple of the speakers, I think the conclusion is that it is going to add confusion. Let me give some examples.
When people think about the amendments they will understand that in a heated moment, in a snap decision they might not have considered some of the following.
First, a person is not guilty of an offence if he or she believes on reasonable grounds that force is being used against him or her, or another person, or that the threat of force is being made against him or her by another person, if the act that constitutes the offence is committed for the purpose of defending or protecting himself or herself from another person, and the act committed is reasonable in the circumstances.
That is where the problem starts. What constitutes being reasonable in the circumstances to use force to arrest someone? In determining whether the act committed is reasonable in the circumstances, the bill suggests that the court may consider certain things. It is not that the individual should consider them, but I doubt that the public at large would be able to deal with it.
The court is going to have to consider the nature of the force or the threat being used and the extent to which the force was imminent or whether there were other means available to respond to the potential use of force. For example, were there any options. The court will have to consider the person's role and intent in the incident, what he or she was doing, was the person a party to it at some point in some way. The court will have to consider whether the party to the incident used or threatened to use a weapon. Sometimes it is unknown and people are not sure what constitutes a weapon.
The court will have to consider the size, age and gender of the parties to the incident. I am not sure many people would even think about that. I suppose if the individual is a very large person and the other person is intimidated by that individual, it may have some influence on the person's judgment about whether or not the person is going to attempt to arrest the individual. The nature, duration and history of any relationship between the parties becomes relevant, as does the nature and proportionality of the person's response to the threat of use of force, and whether the act committed was in response to the use of threat or force the person knew was lawful. That is part of it.
There is another whole part that goes into the whole aspect of defence of property, but there is a lot of parallel of what constitutes a defence of property. The point, without reading the various provisions, is that the bill does not propose a change in the Criminal Code, which is going to make a defence of property by apprehending or arresting someone because it is one's property.
I have a feeling that Canadians may not be comfortable understanding that we are balancing off the interests of defending and protecting our property and civil liberties. There are certain things that cannot be done to other people. Where is that balance?
When I looked at the speech the justice minister gave on Friday, he used terminology to say that the bill was balanced and necessary, but the speeches so far do not concur. The commentary so far is that although the amendments to sections 34 through 42 in the Criminal Code would cause some confusion, there seems to be some support for the amendments to section 495 and section 494.
Currently section 495 of the Criminal Code says that a peace officer may arrest without warrant a person who has committed an indictable offence or who, on reasonable grounds, the peace officer believes has committed or is about to commit an indictable offence; a person whom the peace officer finds committing a criminal offence; as well as any person whom the peace officer believes, on reasonable grounds, has committed or is about to commit an indictable offence.
What the courts have told us is that for an arrest to be valid on the basis of reasonable grounds, the grounds must be objectively established, in the sense that a reasonable person standing in the shoes of the officer would believe that there are reasonable and probable grounds to make the arrest.
Section 494 of the Criminal Code deals with a private citizen making an arrest. Currently section 494 of the code says that a private citizen may arrest those found committing indictable offences, those being pursued by others who have the authority to arrest, or those committing criminal offences in relation to property.
It is important to note, and the minister agrees, that there is a legal duty under section 494 to arrest and deliver the person to the police forthwith. This has been interpreted by the courts to mean as soon as reasonably practical under all the circumstances.
All of a sudden, “reasonable” and “interpretation” become a big part of the bill.
The bill would expand section 494(2) to permit the property owner or a person authorized by the property owner to arrest a person if he or she finds that the person who committed a criminal offence on or in relation to his or her property is just at the time when the offence is being committed or also within a reasonable time after the offence is committed.
Here again is the concept of a reasonable time and, all of a sudden, it is subject to interpretation, so caution has to be taken.
I think I have made my point with regard to the changes being made. I would like to briefly comment on a couple of other points.
We have had two private members' bills on this issue already. It is clear that the government has not taken this seriously. In fact, it has politicized it by having photo ops and saying that it is going to do things, which it did not do for almost a year. Then, when we look at the calendar and what is going on at the justice committee, it is very clear that the bill is a long time away from ever becoming law, if at all.
I also note that the very last clause of the bill says that the bill will come into force when it gets fixed by an order of Governor in Council.
After the legislation goes through the House and the Senate and receives royal assent, the provinces have to get involved. It becomes even more problematic because the provincial policing authorities are probably the ones which are going to have to enforce this law. The government has not done its homework. It should have been done already. I do not believe that the government is serious about this. I hope it does not stand in the way of getting the bill through the justice committee expeditiously.
Marc Lemay Bloc Abitibi—Témiscamingue, QC
Mr. Speaker, I listened carefully to my colleague. I will have the opportunity to come back to this topic later, when I speak to Bill C-60.
My colleague is quite right. Incidentally, the Standing Committee on Justice and Human Rights is in session right now, and I will return to that meeting following my speech here in the House. There are 16 bills awaiting study by the Standing Committee on Justice and Human Rights and, among them, we are currently examining Bill C-4, An Act to amend the Youth Criminal Justice Act and to make consequential and related amendments to other Acts—also known as the Youth Criminal Justice Act. Our examination of Bill C-4 is nowhere near complete.
That being said, my colleague is probably right to say that perhaps we will not be examining Bill C-60 anytime soon. I found that aspect of the member's position very interesting. The bill contains two series of clauses. One part has to do with the whole notion of self-defence. I will come back to that later. It has to do with section 34 and subsequent sections of the Criminal Code. The second part, regarding the defence of property, has to do with section 494.
Would his Liberal Party colleagues be willing to split the bill? We could drop the whole self-defence part, in other words, the amendments to section 34 and subsequent sections that are far more problematic than the request under section 494 of the Criminal Code. Would they agree that the bill should be split in two in order to study the changes to section 494 sooner, even if it means delaying the passage of the other amendments regarding self-defence, that is, regarding section 34 and subsequent sections?
Paul Szabo Liberal Mississauga South, ON
Mr. Speaker, I thank the member, who is on the Standing Committee on Justice and Human Rights, for confirming to the House that the committee is very bogged down with 16 bills. That is a story in itself. If we go back in history and find out how many of these bills have been before us previously, how many died on prorogation and had to be introduced, how many were dropped and put into a consolidation and how many were dropped altogether, we are on a merry-go-round.
With regard to his specific question, I agree with him. I have heard from others in the House and it seems that is the way the debate is going, with amendments to sections 34 through 42. These are the areas where there seems to be some confusion or concern about making the law even less clear than it is already. There does not seem to be much difficulty with the other amendments regarding police and public arrest under subsection 494(2).
The member has an important suggestion for the House to consider and it may even be dealt with at committee by simply making that change right off the bat.
Marc Lemay Bloc Abitibi—Témiscamingue, QC
Mr. Speaker, if I have the opportunity to ask another question, then I will gladly do so. In response to what the hon. member just said, I would say that there were nine bills before the Standing Committee on Justice and Human Rights that died on the order paper when Parliament was prorogued. In the end, three of these nine bills were reintroduced for consideration by the House. Moreover, one of the bills we considered here has to do with online pornography and online predators. I cannot recall the exact numbers because there are so many, but I think that it was Bill C-20 that was recently passed by the House and, in our opinion, should be passed by the Senate.
That being said, Bill C-60 deals with two issues, one of which is very problematic: the use of self-defence to protect one's property. This has always been a problematic issue. The hon. member was speaking about the proposed amendments to sections 34 to 42 of the Criminal Code, which pertain to self-defence. These sections are often subject to interpretation and the courts have rendered many different decisions in this regard. The protection of property, which is what interests me, is addressed in section 494 of the Criminal Code. Under section 494, we may arrest without warrant a person who is destroying our property or that of others. I will come back to this later.
Can the protection of property be distinguished from self-defence? If so, we could pass Bill C-60 to amend just one section of the Criminal Code, section 494. I would like to hear the hon. member's thoughts on this. Perhaps he could speak to us about his party's position, which unfortunately I have not yet heard.
Paul Szabo Liberal Mississauga South, ON
Mr. Speaker, members in this place want to be successful when delivering legislation, in whole or in part, that helps address the problem raised by the Chen case. We need to be responsible in this fashion.
The member had a suggestion and I heard a couple of other suggestions. In most cases, though, it sounds like the full bill, as presented to us, Bill C-60, will not be acceptable to the majority of parliamentarians.
It does raise, however, the number of bills we have had over all these years, which the member mentioned. This is the political or the partisan line. If the Conservatives have lots of bills, we could say that they were tough on crime or at least that they intend to be tough on crime. However, if the bills keep getting shut down or thrown out because we have an election or prorogation and they have to be reinstated or not, this is part of the game that is being played.
This was a straightforward incident. By consultation, the Department of Justice, with appropriate consultation with provincial authorities, could have come up very quickly with what the principle deterrents are to having an effective Criminal Code with regard to citizen's arrest. It could have dealt with it.
It looks like another ministerial staffer has come up with a laundry list of a whole bunch of other things, none of which have been vetted with the provinces yet, so we will have to enforce this and Canadians will have to understand it.
The minister has let the House down and so has Bill C-60.
Ruby Dhalla Liberal Brampton—Springdale, ON
Mr. Speaker, I want to take the opportunity to commend my colleague, who is in a riding adjacent to mine, on some of the work he has done in regard to ensuring that there is a tough on crime stance that is effective and efficient.
When talking to some of the officers in my constituency of Brampton—Springdale and some of the organizations, they feel that the bill does not address the initiative that was intended. A variety of different ideas and suggestions have been put forward.
In my particular riding there is a huge initiative by many of the organizations and many of the officers to ensure that we actually have local solutions. We have heard a lot of rhetoric from the government on justice and addressing crime but when it comes to actual results they are very minimal.
There is a great deal of frustration and anxiety that these particular issues are not being addressed. In my community we have an initiative we have co-founded called the Brampton-Springdale Youth Advisory Council where we have young people engaged to design and develop some local solutions on some of the challenges they face.
Perhaps the member could elaborate on some of those amendments and ideas on how we can get the community engaged to ensure we have effective results instead of just pieces of legislation being thrown at parliamentarians and no real results for community members.
Paul Szabo Liberal Mississauga South, ON
Mr. Speaker, crime prevention is an extremely important part of the equation. We talk about prevention, punishment, rehabilitation and reintegration as the pieces. Prevention is always a dollar best spent. It is always better.
With regard to Bill C-60, though, I am concerned that this may flare up in a feeling that people can take the law into their own hands and mete out a little bit of justice themselves, which raises the whole concern about vigilantism, which we must be very careful about. Yes, rights need to be balanced but we cannot be seen to be encouraging people to give it a try while we cannot protect them. The courts may still decide, on a case by case basis, that an individual could not do what he or she did.
People need to know that the bill is not black and white. It will not give an answer to individual cases, and certainly not in the heat of a moment when something occurs.
Marc Lemay Bloc Abitibi—Témiscamingue, QC
Mr. Speaker, I am pleased to speak to Bill C-60, which came to Parliament rather oddly. The Prime Minister went to Toronto to make an announcement about a man who had been arrested. This government is known for its piecemeal legislation. In other words, if something happens in Toronto, Winnipeg or Vancouver, the government suddenly jumps on it and introduces a bill to amend the Criminal Code.
The problem is that they go about it all wrong. That is the first problem. They amend sections of the Criminal Code. If it is not parole, then it is the parole act, at which point they amend sections on probation, release, etc. They jump from pillar to post and Bill C-60 is no different. We are going to explain the problem to those watching us. It happens. It concerns section 494 of the Criminal Code, which states:
494. (2) 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.
This where the problem begins.
Allow me to explain. Let us just say you own a home or a convenience store, as in the case that led to the proposed amendment now before us. The convenience store owner was robbed. The owner saw the robber some time later and, when he recognized the robber, arrested him. The problem is he does not have the right to do that. It was the poor store owner, Mr. Chen, from Toronto, who was arrested, brought to court, charged with illegal arrest and sentenced. It makes no sense; we know that. However, the legislation says, “may arrest without warrant a person whom he finds committing a criminal offence on or in relation to that property”, in other words, the property he legitimately owns or the property regarding which he is authorized by the owner.
Therefore, you can arrest someone who comes to steal from your convenience store. If you are the clerk at a convenience store and a thief tries to take your money from the cash register, you can arrest him because the law says that you can arrest someone who is “committing a criminal offence on or in relation to that property”. It is not a problem for one person to arrest another who is committing an offence: the former will never be charged. The problem arises, as in the case of the poor man from Toronto, when you arrest someone for a crime committed earlier. The police were taking so long to arrive that he thought it would be quicker for him to arrest the thief. Unfortunately for Mr. Chen, the thief was acquitted because it was an unlawful arrest, and the poor man found himself being charged with unlawful arrest.
Up to this point, it is a good idea to amend section 494 because people are unhappy, with good cause, as they feel that they cannot even arrest someone who has comes to rob them at home.
But a subtle point is being introduced in Bill C-60 and the proposed new subsection 494(2):
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...
This is where the problem arises.
(a) they make the arrest at that time;
It is clear that if someone is robbing a convenience store, they can be arrested. That is not a problem. However, this is what they want us to pass into law:
(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.
That is going a bit far. This means that the owner of a convenience store, to use the same example, can arrest someone who steals money from the register. This happens often. I had many clients who went into a convenience store to steal. Convenience stores have a strange habit of always putting cases of beer on sale near the door, where anyone can see that a big case of 24 costs $24.92 instead of the regular price. Someone opens the door while another person steals the case of beer. You could say that the convenience store owners are asking for trouble.
If you see someone in the process of stealing, you can arrest them, no problem. However, the bill adds the following: “...they make the arrest within a reasonable time after the offence is committed and they believe on reasonable grounds....” Those two points are important. Not only do they have to make the arrest within a reasonable time, but they have to believe that the police or a peace officer would not be able to get there. That is asking a lot of someone.
The Bloc Québécois is in favour of sending this bill to be studied in committee. We think that section 494 of the Criminal Code should be amended. This poor man arrested someone, knowing that this individual had come to rob him. That happens often. To come back to my example, there is a sale: 24 beers for $12.98. That will surely attract thieves. One of the thieves opens the door of the convenience store and the other grabs the case of beer. The owner of the store did not see him steal it, but after two minutes he realizes that he is missing a case of beer. He opens the door, looks outside and sees someone leaving with a case of beer. Under the current section 494, he could not arrest the individual because he did not catch him in the act. That is what happened in Toronto, but the individual decided that he would still arrest the thief and then ended up in trouble.
We believe that a solution can be found so that this section allows an individual to arrest someone. Clearly, if the owner does not immediately arrest someone who is stealing a case of beer, and if the police are not around the corner, it is over. Those are the two instances where something can be done.
However, we have issues with the bill. If it were only about amending section 494, all of the parties would have passed Bill C-60 to rectify that particular issue quickly. It is a Conservative thing. They are using Bill C-60 to introduce a series of amendments to sections 34 through 42 of the Criminal Code, which have to do with self-defence. And they are way out in left field on this.
We cannot support them in that. There are a number of amendments proposed for sections 34 through 42. It is worth reading some of them. Anyone who has practised criminal law, for the defence or the Crown, anyone who has argued a case will know what this means.
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.
Subsection 34(1) is very easy to understand. If you are attacked, you have the right to defend yourself. But if someone punches you and you use a baseball bat or pool cue to defend yourself, in a bar for example, and you cause grievous bodily harm or even death, that is clearly not a case of self-defence. Someone who is attacked on the side of the road has the right to defend himself. Everyone has the right to defend himself against a violent attack, as long as he does not intend to cause death or grievous bodily harm.
They are trying to force us to accept certain things. The bill would amend section 34 with a new subsection 34(1), which reads:
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;
And there is more. Listen to this:
(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; and
(c) the act committed is reasonable in the circumstances.
They dare to add another amendment:
(2) In determining whether the act committed is reasonable in the circumstances, the court may consider, among other factors,
(a) the nature of the force or threat;
(b) the extent to which the use of force was imminent and whether there were other means available to respond to the potential use of force;
(c) the person’s role in the incident;
(d) whether any party to the incident used or threatened to use a weapon;
(e) the size, age and gender of the parties to the incident;
I could go on. What they would have us swallow makes no sense. It is clear we will never, ever accept that.
They want to put every ruling from the Supreme Court, the Court of Appeal for Ontario, the Quebec Court of Appeal and the Court of Appeal for British Columbia that ever defined self-defence into the Criminal Code.
With all due respect to the Conservatives, I must say that the concept of self-defence has evolved over time. The definition of self-defence is no longer as open as we thought. We have taken into account the force necessary to repel the attack if, in so doing, the person did not intend to cause death or serious bodily harm. If that is not clear, then it is up to the court to decide. It is not up to us to define the concept of self-defence for the court.
This would also be added:
(f) the nature, duration and history of any relationship between the parties to the incident, including any prior use or threat of force and the nature of that force or threat;
(g) the nature and proportionality of the person’s response to the use or threat of force;
It does not make sense to try to define self-defence in the Criminal Code. We cannot accept that. The courts have given rulings and when people were dissatisfied, they filed an appeal. If they were still dissatisfied, the case went before the Supreme Court, which established, once and for all, the definition of self-defence and how self-defence can be invoked by defendants.
We cannot accept all of this. There are examples of legitimate self-defence. Here is one such example. One of my clients goes into a convenience store—this has happened a few times—except he does not know that this is the fifth time the store has been robbed. Nor does my client know that the store owner has a 12-gauge. For the benefit of my Conservative friends, a 12-gauge is a weapon, a shotgun. So he has a 12-gauge shotgun under the counter. The owner tells himself that this is the last time someone is going to rob his store. My client enters the store and, yes, he goes about assaulting the store owner to steal from the cash register. I am not saying that my client is a charming man or that he should win a Governor General's award. That is not what I am saying. I am saying that my client goes into a convenience store and robs it. He has no weapon. He leans over to reach into the cash register to take the money. What does the store owner do? He pulls out the 12-gauge shotgun and shoots him. He does not shoot him in the head. He does not shoot him in the heart. He shoots him in the legs to make sure this guy remembers him. He does not want to kill the robber. That is what he told the court.
With all due respect, I do not think that this qualifies as self-defence. The court agreed. I defended the accused. The owner came and said all this before the court. Clearly the judge said that his behaviour did not constitute self-defence. What is self-defence? I repeat: self-defence is “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”. When someone shoots another person in the leg with a 12-gauge shotgun, the courts assume that the person did so with the intent to cause grievous bodily harm. In this example, the man was convicted.
Bill C-60 is well-intentioned in aiming to solve the problem of defence of property. However, a distinction must be made between the defence of property and self-defence. Self-defence applies when an individual is the victim of a personal attack. Motorist A is driving down the highway—and this has happened on more than one occasion—and is cut off by another motorist, motorist B. Motorist A does not like this. He pursues the other vehicle and cuts the driver off. Motorist B parks his vehicle and hits motorist A with a baseball bat. This is not self-defence.
What was well-intentioned risks going nowhere because clearly we are not going to agree to amend sections 34 to 42 on self-defence. There is too much in there. The courts have ruled on the definition of self-defence, on the defence of self-defence. We have to let the courts do their job.
However, and I will end on this point, the idea of amending section 494 of the Criminal Code is well-intentioned and we can work on amending this section so that it does what society is asking for.
Paul Szabo Liberal Mississauga South, ON
Mr. Speaker, the more I hear the input of members, the more I understand that this bill seems to try to put into legislation what the courts traditionally have thought of as being factors and other considerations but not factors or considerations hat may cause someone to be charged with an improper arrest.
In the simple case of Mr. Chen, which is a very vanilla case, someone robbed him. He was not able to apprehend that person and hold him for police at the time. However, that person returned to rob him a second time. He was identified, chased on his bicycle, stopped and held for the police. Mr. Chen was charged under the application of the current Criminal Code.
If we had to make a change to the Criminal Code to ensure that Mr. Chen would never be charged again for the same act, what would the change be?
Marc Lemay Bloc Abitibi—Témiscamingue, QC
Mr. Speaker, that is the $1,000 question. I thank my colleague for his question, and I will try to be brief in my reply.
If we remove sections 34 to 42, Mr. Chen would not be able to benefit from the presumption of self-defence because Mr. Chen was not attacked. That settles the matter of sections 34 to 42. I do not understand why these clauses are being proposed; they should not be there.
Let us now discuss the heart of the matter, section 494. I concur with my colleague that we have to find a solution to the problem. This section states that a person authorized by the owner—we are talking about the man in question—“may arrest without warrant a person whom he finds committing a criminal offence on or in relation to that property”.
We need to find a way to say that he may make the arrest, within a reasonable time, after the offence is committed. This has not been studied or analyzed. If someone leaves the convenience store with a case of beer without the owner or clerk seeing him and, in the next few seconds, that person realizes that a case of beer is missing, goes outside and sees the perpetrator, then I believe that he could make the arrest, even though he did not see the offence being committed. We must find a way to rewrite section 494.
My colleague is quite right to say that we have to avoid such legal mistakes, if we can call them that. Above all we must not introduce piecemeal legislation that addresses individual issues.
Don Davies NDP Vancouver Kingsway, BC
Mr. Speaker, I listened with interest to the many cogent points put forward by my hon. colleague. It is fair to characterize this bill as comprising three parts. The first part deals with the situation that many Canadians were very appalled to see involving the circumstances that happened to Mr. Chen.
The first part of the bill would enlarge the time period in which someone can make a citizen's arrest. We know the current Criminal Code says that a citizen's arrest can be made during the commission of an offence. The first amendment would enlarge that period to be within a reasonable time, which I think most Canadians would find reasonable. The next two parts have to do with the government rewriting the sections on defence of property and defence of person.
I think we can all agree in the House that the first part of the bill is merited and should proceed but that the second and third parts require careful and considered study. Would he agree that we can support sending this bill to committee so that it can examined in a cautious manner what kind of amendments may be necessary to the Criminal Code to deal with the second and third parts of this bill?
Marc Lemay Bloc Abitibi—Témiscamingue, QC
Mr. Speaker, I thank my colleague for his question. He is correct. There are two things. First, there is no need to touch sections 34 to 42 on self-defence. The courts in all of the provinces and the Supreme Court of Canada have issued rulings; there is jurisprudence. Lawyers who have even the briefest introduction to criminal law in the first year of law school learn the definition of self-defence. There is no need to amend these sections.
Second, there is defence of property, which is less clear. Defence of person is self-defence, but I agree with my colleague that when we talk about defence of property there are some grey areas in section 494. At least we will have focused the debate on subsection 494(2) of the Criminal Code. I admit that it is not clear.
If I had had to defend that individual, there would have been a trial, even though we know that you can arrest without a warrant a person you find committing a criminal offence, as is written in the bill. A citizen must witness the offence; he must be there. He has the right to arrest someone he finds committing an offence. The rest, only peace officers may do. But if they do not come, even after being called three times, what does someone do when the thief is drinking a beer on the corner? That is where the public is right. When the committee studies section 494, it will no doubt find a solution. However, we must not be touching sections 34 to 42 on self-defence.
Paul Szabo Liberal Mississauga South, ON
Mr. Speaker, the member has really helped to move this along a fair bit.
After seeing how this pattern is working out, it strikes me that the government bill before us is not one which has been crafted with due care and diligence. The Department of Justice and legal experts are there to help the government in crafting these things. There are representations by the government and the minister, photo ops by the minister and the Prime Minister, and yet the bill fundamentally does not work. It is problematic.
I wonder whether the member shares my concern that maybe this whole idea of photo ops and bills that do not work has more to do with getting another picture for the government's ethnic strategy rather than delivering legislation, because the government wants to continue to say it is tough on crime without actually delivering legislation on crime.