Mr. Speaker, I wish to inform you that I will be sharing my time with my colleague from Compton—Stanstead.
This bill would amend the Criminal Code, in particular subsection 494(2) on citizen's arrest, self-defence and the protection of property. My speech will mainly focus on citizen's arrest and self-defence.
The amendments would make the legislation more flexible. For example, they would allow a person to arrest someone without a warrant within a reasonable time. Often, as In the case of a number of the examples provided today, a person is attacked, may not necessarily fight back immediately, but may do so subsequently. It will be up to the courts to decide what is a reasonable time based on the circumstances. The legislation provides the courts with a framework for making decisions.
The second part concerns self-defence. In committee, the NDP proposed nine amendments to the bill; only two were accepted and seven were rejected. Even though the NDP would have preferred that all nine amendments be accepted, it recognizes that the law needs to be amended and that the bill addresses certain shortcomings and updates the legislation. For that reason, the NDP members support Bill C-26.
It is important to mention—in case the government is listening—that the NDP had proposed an amendment in order to add a subjective aspect to self-defence and to include situations of spousal abuse. This amendment not only included spousal abuse, but also cases of 18-year-olds who still live with their parents and who are abused by one of their parents or a member of the family and have been for many years. This might include any situation where a person has a history of violence.
Battered woman syndrome often comes up in the courts. However, this syndrome is not necessarily recognized. A person who has been a victim of repeated acts of violence might perceive matters incorrectly when in a violent situation. Their reaction to their attacker might be unpredictable.
It is important to know, when we are talking about spousal abuse, that the attacker—the spouse, the husband, or whoever—will not necessarily expect that reaction. I am also thinking about the situation where an 18-year-old might want to protect his mother from being attacked by his father. Someone who is raised in a violent setting might have an unexpected reaction to a relative or loved one who commits an act of violence.
The proposed amendment asked that the court assess whether, in the person's eyes, the person's actions were reasonable in the circumstances. In some situations, the court might take into account this type of history. Including this in the legislation provides a framework for this type of situation. This principle was created through jurisprudence and might differ from one province to another or one judge to another.
Hence, the interpretation is really based instead on evidence and testimony. In certain cases, the fact that it is not included in the legislation may, perhaps, be damaging to certain victims. In fact, I am talking about victims. On several occasions, women who have simply sought to defend themselves against their spouses have themselves been accused of assault. As the member for Gatineau mentioned, we have even seen cases where people no longer wish to intervene. I remember a case in Quebec, for example, where a person dove into the river to save somebody. However, the person who was rescued got injured in the process of being removed from the river and sued the rescuer for assault and battery.
Simply including this in the legislation will give victims of crimes and people seeking to defend themselves the assurance that they themselves will not be prosecuted for battery or assault.
In fact, an historical context is really important here because in several sections of the Criminal Code, there is an objective component that deals not only with assault and battery, but also the intention to hurt somebody. In the case of assault causing bodily harm, the person must have had the intention of causing bodily harm. Bodily harm is identified, but so too is the intention behind it. In self-defence, the issue of intention is not relevant. For example, a victim of domestic violence who takes a pot and hits her attacker on the head with it did not intend to inflict a wound, but rather to defend herself.
I think that this is really important. There are several organizations that share this opinion, one being the Canadian Bar Association. I read in its recommendations, which were based on its review of the bill, that it proposes that the clause be amended to read “the act committed is reasonable in the circumstances as perceived by the accused”. Perception therefore plays a very important role.
The government’s amendment is slightly different to ours. The NDP nevertheless succeeded in having an amendment passed that requires the court to consider the personal situation of the person who used self-defence. The wording is, however, not as precise as what the NDP proposed.
For example, in a situation where two men fight, self-defence is often more difficult to prove. However, let us consider someone who is 18—I often use this example—and has grown up in a violent household. Every day, he sees his father beat his mother and one day he decides to stand up to him, because his mother refuses to defend herself.
In my opinion—and I hope that the government hears this—it is important to be precise about this kind of amendment. Often, the courts need legislators to guide them in the decision-making process. Legislator must take their role seriously and provide a legal framework for these kinds of situations.
I am not criticizing the bill. I am simply proposing some potential improvements. It is a step in the right direction. We proposed nine amendments. We will amend the Criminal Code in the hope that we might continue to improve it in the years to come.