Madam Speaker, I will be splitting my time with the member for Portage—Lisgar.
I am pleased to speak to Bill C-26, An Act to amend the Criminal Code (citizen's arrest and the defences of property and persons). Bill C-26 addresses a number of distinct but interrelated measures that give Canadians the power to respond to immediate threats to property and to persons, where the police are not able to be there.
In urgent situations where property or the safety of persons is being deliberately threatened, citizens may act to defeat the threat, including by resorting to actions that might otherwise amount to criminal conduct. The criminal law must recognize the ability of Canadians to take reasonable and measured actions to defend against criminal threats. More specifically, Bill C-26 addresses the law of citizen's arrest and the defence of person and property.
These three measures already exist in our law, depending on the circumstances and motivations of the person in any given case. They operate to shield individuals from liability for any of their actions that are otherwise criminal, precisely because in the particular context those actions are aimed at defending vital interests or apprehending wrongdoers.
However, all three sets of laws are in an imperfect state. Bill C-26 aims to improve each of the powers to ensure that Canadians and the justice system itself can more easily and more fairly assess the appropriateness of defensive emergency actions. The better the law sets out the conditions for legal emergency action, the fewer Canadians will find themselves charged and prosecuted for defending themselves against true criminals.
Today the defences of self-defence and defence of property are set out over nine provisions, with each defence having multiple variations that apply in slightly different circumstances. There is no need for variations covering different cases when they are all based on the same general principles. Further, the variations cause immense problems in court. Even before that, they complicate the ability of police who arrive at the scene to determine whether charges should be laid.
Parliament's duty is to ensure that laws are clear and simple. That is what Bill C-26 does for self-defence and defence of property. The new laws can be summarized quite simply. In the case of defence of property, a person should not be held responsible for a criminal offence he or she commits if it is a reasonable response taken for the purpose of protecting property in his or her possession from a reasonably perceived threat of it being taken, damaged, destroyed or trespassed upon. In the case of self-defence, a person should not be held responsible for a criminal offence her or she commits if it was a reasonable action taken for the purpose of protecting himself or herself or another person from a reasonably perceived attack by another person.
The proposed new defences in Bill C-26 will capture the essence of the current laws but in a much simpler way. The new laws will clearly and simply set out the conditions for defensive action. Self-defence is particularly important. It arises much more frequently than the defence of property, and it can provide a defence to murder. Because of the central place of self-defence in our criminal laws and reduction in the detail that is now present in the law, Bill C-26 goes an extra step. It proposes a list of factors that the courts must consider in determining whether the actions a person took, assuming that he or she reasonably feared an attack and acted for defensive purposes, were reasonable in the circumstances.
What is reasonable in one case may not be reasonable in another. Everything comes down to the facts and circumstances of each case. For instance, shooting someone in the leg may be a reasonable reaction if the person were threatening to kill someone, but it would not be reasonable if the person were threatening only to step on someone's toe. This criteria must therefore be determined flexibly.
However, a number of factors are common to many self-defence cases. The bill refers to some of these in a non-exhaustive list which is designed both to provide guidance to judges and juries, and to signal to the courts that they should continue to apply existing case law.
Factors on the list include whether any party had a weapon, the nature of the threat the person was facing, and whether the individuals involved had a pre-existing relationship, especially one that involved violence or threats. Proportionality between the threat that was averted and the harm that was caused is always going to be a relevant factor, and so is also on the list.
Following the testimony of a number of witnesses, the committee made several changes to enhance and expand the list. One such change modified the opening words of the clause to make it clear that the judge “shall”, not simply “may”, consider all relevant factors. The committee also clarified the factor that speaks to the size, age and gender of the parties by adding a more general idea of physical capabilities.
Finally, a new factor was added that refers to any previous communication or interaction between the parties, which is broader than the factor that speaks about a relationship between the parties.
The new defences are drafted so as to be easy for Canadians to understand, and so they should also be relatively easy for police to assess and juries as well, if charges are in fact appropriate. Canadians would understand that they would only be protected from liability where they genuinely act to protect property or person. Taking revenge against someone for past actions would not be excused.
They appreciate that they are not free to cause unlimited harm just because there is a threat. On the contrary, they must stick within socially acceptable standards of behaviour. With the passage of Bill C-26, the law would finally come to reflect these fundamental rules that Canadians already know.
Bill C-26 also would make a modest extension of the existing power of citizen's arrest in cases of property crime. Right now people can only arrest others if they find them committing an offence. This means that an arrest would be unlawful if it were committed just a few hours after the crime was witnessed, even where arrest at the time the crime was committed was not possible or was unsuccessful, for instance, because the suspect successfully got away.
The current law is too limited. Allowing people to arrest within a reasonable time of having witnessed the crime seems more practical. Law-abiding citizens and business owners should not become criminals just because their attempt to bring someone to justice was a little bit late.
To address this problem, Bill C-26 allows for arrest to be made not just when the crime is found in progress but also within a reasonable time afterwards. It would still be necessary for the arresting person to have observed enough of the crime to be confidant that it was committed. In addition, if the arrest were made later, the arresting person would have to turn his or her mind to the possibility of the police making the arrest instead. In every citizen's arrest situation, the arrested person must be turned over to the police as soon as possible.
All these requirements give our government confidence that this modest extension would not result in vigilante or other inappropriate or abusive behaviour.
Those who commit crimes against property should know that they are at risk of arrest, not just on the spot but also within a reasonable time of their offence, and those who have property stolen from them or have been otherwise criminally damaged should know they are entitled to participate in bringing those who wronged them to justice where the police are not able to do so.
I urge all members to support these important law reforms.