Madam Speaker, I am pleased to have an opportunity to speak at this third reading stage of Bill C-26, An Act to amend the Criminal Code (citizen's arrest and the defences of property and persons). We would amend the Criminal Code in two respects, in relation to the issue of self-defence and the issue of what is known as citizen's arrest, which is contained in section 494 of the Criminal Code.
The circumstances giving rise to this bill in the first instance arose through the case of David Chen who was a shopkeeper in the city of Toronto at a store called the Lucky Moose. On that particular day, the Lucky Moose was not so lucky because of an incident that ended up in an individual being arrested and subsequently the store owner himself being the subject of criminal proceedings. This gave rise to a consideration of the rules with respect to a citizen's arrest in Canada under the Criminal Code.
This was originally a private member's bill brought forward by the member for Trinity—Spadina, and it ultimately was incorporated into a bill by the government, which also decided it was time to give consideration to suggestions that had been made by many, including academics and the Supreme Court of Canada, which suggested there was a great deal of confusion in our law on self-defence. We had a provision with approximately eight sections of the Criminal Code that dealt with self-defence. They were not necessarily contradictory but gave rise to potential interpretations of contradiction and caused problems of interpretation and sometimes contradictory results in the case law. An attempt was made to change that at second reading here in the House. This bill on the whole is a reasonable, if not perfect, example of inter-party co-operation on the creation of legislation that is literally seeking to improve legislation that is brought before the House, in this case by the government.
We had agreement at second reading to proceed to committee and we went through a series of hearings where we heard from individuals including Mr. Chen, other representatives of shopkeepers and store owners, someone from the security guard industry, lawyers in private practice and officials from the justice department. Our expressed intention at second reading, when dealing with this legislation, was that we ought to be very vigilant here when we are taking provisions of the Criminal Code. I do not know if they have been amended in decades or even 100 years, since the Criminal Code was first codified into law. There were not many amendments to these sections. Some might say they had stood the test of time, but they had not stood it very well and it was time to revise it.
The worry was that when we make these changes, we did not want to make changes that would cause problems and that have unanticipated results. Therefore our intention was that we ought to be very careful, that we ought not to treat this as something that could be done in a perfunctory manner. There was some rush in December that this could all be done in a matter of three or four days before Christmas. That was not our view, in our experience of hearing from the witnesses and considering the amendments that came through at the committee stage. There were a dozen or more amendments, probably 15 or 16, proposed by all parties. I know there were a dozen NDP amendments and four by the Liberals, and maybe the Conservatives did not bring any amendments. I do not see any here on my list.
Nevertheless, there were very extensive discussions in the committee while hearing from witnesses and legal counsel who had acted in a number of cases and who understood the law. We heard from the Barreau du Québec and the Canadian Bar Association. They very helpfully offered their comments and advice.
Based on some of this, as New Democrats and as the official opposition, we put forward a series of amendments designed to improve the bill. I will say that some of them were accepted by the government members on the committee, and we are very pleased to see that. Others were not, and obviously we were disappointed that the measures we brought forward in those instances were not accepted.
However, it was a collaborative effort. We did our best as a committee to not only come to conclusions and be reasonable but also to listen to the advice of the officials from the department of justice who were there as technical experts on the interpretation of various provisions of the existing law and who had their opinions with respect to how it might be interpreted based on the existing case law.
On the basis of some of that, some of the amendments we had proposed as being beneficial were in fact withdrawn by us. I say that just to let members of the public who are watching understand how this process works.
We have legislation that is brought forth. If it is a government bill, it is brought forth by the government. It is debated at second reading. It goes to a committee where witnesses are heard, often expert witnesses, in this case lawyers, but also members of the public, who we heard from in this particular case. Then we have what is called a clause-by-clause study in committee on each element and each word, if it comes down to that, especially when we are dealing with criminal law because every word is given a meaning by the courts.
We came forth with amendments that we thought were appropriate. These were then debated in committee at clause-by-clause consideration with experts, and ultimately what we have before us at third reading is this bill as amended.
That might sound a bit tedious, but it is also extremely important. What is written in these sections of the Criminal Code determines what the courts call the liberty of the subject or the freedom of a citizen. A citizen's freedom can often depend on the interpretation of one, two or three words in the Criminal Code. That is why it is important.
Let me give an example of why that is. The amendment to the citizen's arrest provision is designed to change the law so that a citizen's arrest, which under the existing provisions of the Criminal Code must be made at the same time as the commission of an offence, has now been changed. The new wording will say that the arrest to be made within a reasonable time.
That sounds like a small difference, but it can be the difference between the guilt and innocence of someone who is charged with making a citizen's arrest that, as in the case of David Chen, was not while he caught someone in the commission of an offence but was a couple of hours later. That person had left Mr. Chen's store after being seen to steal something, came back a couple of hours later and was then arrested. Mr. Chen was charged with kidnapping, unlawful confinement and other charges.
He was eventually acquitted by a judge, but nevertheless the crown and the police felt very strongly that they had the right and should have the right, and expressed no regrets for it afterwards, to arrest the store owner and charge this individual because of their understanding of the wording of the act. The judge found extraneous circumstance, but it would be unusual for the words not to be applied as they were in the Criminal Code.
The change to add “within a reasonable time” is a good one, and we accepted that. We also thought, however, and this is where one of our suggestions was rejected by the committee, that there ought to be a further protection in the sense that while an arrest should be made within a reasonable time, and we agreed with that, it should be made at the first reasonable opportunity.
We had evidence before us suggesting that the law was too broad, as it was written by the government, that it would allow for organizations such as private security operators to turn themselves, essentially, into private investigators who would act as agents of individuals and arrest somebody at home some time later. We tried to put some constraint on that by saying it had to be not only within a reasonable period of time but at the first reasonable opportunity.
Another amendment, which was defeated, suggested that it should be within a reasonable period of time after the offence is committed and at a place that is within reasonable proximity to where the offence was committed. In other words, it does not have to be in the store. If the individual was found down the road some 20 or 30 minutes later, he or she could be arrested, but the individual could not be hunted down over a period of time, such as after finding out where the person lives and arresting him or her at home. People would be required to phone the police to say, “Here is the address of the guy who stole from me. I am satisfied that he lives there. Would you arrest him, please?” That was rejected and there were arguments made on both sides as to why and why not.
However, other amendments we proposed were accepted. For example, when we talked about the other topic of self-defence, we wanted to ensure the court was going to take certain factors into consideration and added an amendment of our own. We wanted to ensure that it must take into account the relevant circumstances of the other parties involved in the act, and also other factors. Those factors listed in the original bill had to do with size, age and gender of the parties. We sought to add the physical capacities of the parties because gender by itself may not be sufficient. There could be a man with a slight build, a mild manner and incapable of doing certain things, or there could equally be a woman who was in fact a formidable opponent, trained in physical combat, martial arts or any number of activities. When taking into account the person in respect of self-defence, one should take into account not only gender but the physical capacity.
These are just examples of the kinds of changes that were made in our committee to improve the quality of this bill.
We had some reservations about some of the wording, which is evident in the dozen or so matters we brought forward, but on balance we are satisfied that what we have at the end of the day is an improvement over what was there. As to the confusion that reigns to some extent on the issue of self-defence over the last number of decades that has been recognized by our courts, there have been at least attempts to resolve it with the best information and the best we have been able to bring to the task up until now. We did not want to see another 20 years of litigation to determine whether we made a good choice or not. That was our worry.
We have given it the kind of scrutiny that a legislative committee is expected to. That is important. That is, after all, our job. We come here to represent our constituents on all sorts of levels, whether they be major policies in terms of economic development, international affairs, the redistribution of wealth and taxation or attempting to solve social issues like housing and poverty, but we also make laws. One of the laws that governs all of our citizens is criminal law. In crafting those laws we, the people in the chamber, are the ones who have the ultimate responsibility for passing those laws. This is a prime example of how a committee would look in detail.
Most of the justice committee members are lawyers. I happen to be a lawyer, but I do not for one minute believe that one needs to be a good lawyer to make good laws. I would be the last person to say that. Also, we had good advice to the committee from witnesses who are not lawyers and also from members of the committee who had their points of view on both sides, our side as well as the other. They put their common sense, knowledge, experience and brainpower to the task of making the law better. This is a good example.
My colleague, the previous speaker, talked about how this particular government uses the criminal law for political purposes. That is a big shame. It is a serious shame. I had the honour of being the justice critic since last October. I am not anymore; my colleague is now the justice critic, and I commend her to her new role. I know she will be equal to the task. It is an important job.
I do decry, along with the previous speaker, my colleague from Winnipeg Centre, the attitude the government has toward criminal law. It is the most appalling, degrading kind of debate. We should not even give it that name. To suggest that someone is obviously in league with child pornographers or pedophiles if that person disagrees with the government's idea of what the criminal law ought to be—the wording and nature of crime and punishment and how to go about dealing with that—is the most appalling abuse of parliamentary precincts that I have encountered, and I say that with some experience: I was first elected to Parliament 25 years ago next July.
That is the most appalling thing that I have heard in this Parliament and the other parliament that I was in with the Province of Newfoundland and Labrador. It is appalling for the government to suggest that people who disagree with it are in league with criminals and are here to defend...well, on one day it could be pedophiles, the next day terrorists, the next day child pornographers. It is appalilng that the government would do that.
However, amidst all that, there was this small island in dealing with Bill C-26, in which the justice committee sat down and talked, for the most part civilly, about the rules governing self-defence. It is an extremely important part of our criminal law. The right of citizens to defend themselves when under attack or under a threat to their lives or safety or property is a most important right that citizens have, and a criminal law should reflect a proper understanding of how that ought to be interpreted.
The right of citizen's arrest is not something new. It did not come about as a result of the Criminal Code. In fact, the citizen's arrest predated the development of police forces. At one time that was the only way that people were arrested for crime, by an act of a citizen. When we codified the common law, much of the criminal law was governed by common law, and in many respects it still is in some countries, including England, although it has codified things recently.
The citizen's arrest is also a fairly fundamental kind of right that citizens have to defend themselves and to arrest someone who they find committing an offence. Both of these things are extremely important, and we did have, with the work of this committee, a very small island of working to try to improve it.
It is not perfect. I hope the courts will not take 10 or 15 years to figure out what it really means and I hope we will not have controversy, but I think we have done a good job, and we support the bill as amended.