Brent Rathgeber

[Fair Representation Act, December 9th, 2011]

Madam Speaker, I am not sure my friend from Crowfoot asked a question, but I do agree that the government and the minister, the member for Edmonton—Sherwood Park and my friend, have widely consulted with Canadians. Canadians in faster growing provinces, such as British Columbia, Ontario and Alberta, want and demand greater representation in the House. Citizens from other provinces do not want to lose representation and I think the member struck the right compromise.

[Fair Representation Act, December 9th, 2011]

Madam Speaker, I do respect the member's work and his expertise on this file but I disagree with his premise. As he will know, my province of Alberta, which I talked about what we did there eight years ago, is actually increasing the size of its house prior to the next election in the spring of 2012.

However, the issue is not the size of this House. The issue is the disparity of the House between regions, such as those in Brampton and those in sparsely populated areas such as in the north. The disparity between densely and less densely populated areas is growing and it has never been larger in the history of our country.

The member talked about internationally. His figures are correct but the disparity of Canadian weighted votes by provinces has never been greater and it is larger than in Germany, Switzerland, Australia and in the United States. I agree with the member with respect to the numbers but the issue that is being addressed by the bill is the disparity between the sparsely populated and densely populated areas and, based on international standards, Canada is out of sync.

[Fair Representation Act, December 9th, 2011]

Madam Speaker, under the formula, and it is a formula, it is not a dictation of seats, but based on population in the 2011 census, Quebec would be afforded three additional seats under the formula that is proposed in this bill. I am a little confused as to why the member believes that Quebec would lose representation. Quebec's representation would be within a very small margin of 24% or 23.8%, which is about what it is currently. In fact, Quebec would not lose seats. It would gain three seats.

[Fair Representation Act, December 9th, 2011]

Madam Speaker, it is indeed an honour for me to rise and add my comments at report stage with respect to Bill C-20, the fair representation act.

As members know, representation by population is one of the fundamental principles of democracy. In fact, it is one of the principles that this country was founded upon.

In researching the debates leading to the British North America Act and the formation of Upper and Lower Canada with New Brunswick and Nova Scotia in 1867, members would know that the Fathers of Confederation insisted that the House of Commons would be based on the concept of representation by population; that all Canadian citizens in the new country of Canada would have an equal voice in electing members to this chamber and an equal voice in the affairs of their nation; and that their members would, within reasonable limits, represent the same number of people.

Those principles that our country and Constitution are based on are as valid today as they were in 1867, so it will come as no surprise to the members of the House that I support Bill C-20 and congratulate the Minister of State (Democratic Reform) for introducing this legislation. In my view, it will remedy some of the current deficiencies in representation in this chamber.

This legislation, as members of the House know, does not dictate the number of seats that each province would get; rather, it sets a formula and changes the formula that determines the representation in this House.

Several provinces in our Confederation are growing much more quickly than others. I happen to represent an electoral district in one of those faster-growing provinces, the province of Alberta. The other faster-growing provinces are British Columbia, where you, Madam Speaker, are a representative, and Ontario.

On representation by population, I think we can agree on two things: that it is a principle that ought to be adhered to to the greatest extent possible, and that true and perfect representation by population is impracticable in a country as diverse as Canada.

Simply stated, on the one hand we have too many densely populated areas. Around the GTA, for example, Mississauga, Brampton and other suburbs are densely populated and growing arithmetically. Conversely, we have very sparsely populated parts of our country: the Arctic, the Northwest Territories, Yukon, even northern Alberta. Driving an hour north of my riding of Edmonton—St. Albert, one begins to enter the sparsely populated parts of our province.

We will never have perfect rep by pop because there has to be some accommodation for the less densely populated areas to be represented. Of course those provinces and territories are entitled to representation, and they require and deserve a voice on national issues.

Over time, representation in this place has been modified by a number of formulas, each superimposed upon the other, and we have talked about them today. There is the Senate floor clause, I think from around 1915, which guaranteed that no province could have fewer seats in the lower chamber than it had in the upper chamber. Then there is the 1985 grandfather clause, which dictates that no province could have fewer seats than it had at that time. We have a number of rules superimposed upon each other, and those rules, coupled with the fact that some provinces, including mine, are growing very quickly have led to the current disproportion.

It is a significant disproportion. According to the Mowat Centre, 61% of Canadians are currently under-represented in this chamber. Worse, visible minorities in visible minority communities are particularly under-represented. That is because they tend to reside in under-represented densely populated urban areas, largely but not exclusively in the Greater Toronto Area of Ontario.

I was speaking with my colleague from Brampton West after question period. According to the 2006 census, in his riding he has the highest number of constituents in this country.

Based on the 2006 census, the population of Brampton West was 170,422 people, but he advises me that those numbers are five years old and that there are likely more than 200,000 people living in his constituency.

More significantly, 53% of those, according to the member, are visible minorities. This creates some really distinct problems when we try to represent both that number of people and that number of visible minorities.

As I know from representing the good people of Edmonton—St. Albert, the majority of what we refer to as “casework” is immigration work on behalf of individuals attempting to get visas for their relatives or to expedite their path to citizenship. I represent a relatively homogenous riding in Alberta, but casework still takes up probably close to 70% of the files that come to my office from constituents needing my assistance, so I cannot imagine the workload for a member like the member for Brampton West, who represents, according to him, 200,000 people, half of whom are visible minorities.

The bill tends to remedy those deficiencies by working toward representation by population, although admittedly not achieving it in any perfect form.

Under the new formula, the calculation would give Ontario 15 additional seats, British Columbia six additional seats and my province, Alberta, six additional seats. Because of Quebec's unique status within Confederation, Quebec would be provided with three additional seats to allow its representation to be comparable to what it is currently.

This is a great attempt at moving toward representation by population.

I want to share an anecdote, because I have some experience in this matter.

I know the members of the Liberal Party are advocating that provinces such as mine be awarded extra seats but that the size of the House not be increased. We were faced with a very similar problem in Alberta about eight years ago, when I was the MLA for Edmonton-Calder. We had a comparable situation in that the city of Calgary was growing very quickly; the city of Edmonton was growing, but slowly; and rural Alberta was either staying constant or, in some parts, actually getting smaller. As a result, the people of Calgary were under-represented in the provincial legislature, and we had to wrestle with this very same issue.

Ultimately the decision we made was similar to what the Liberals are currently proposing federally: the provincial legislature would stay at 83 seats, but to accommodate that, we would take two seats away from rural Alberta and one away from Edmonton and give those three seats to Calgary. I know the member for Crowfoot remembers that situation.

The outcry, which ought to have been predictable, was loud. The citizens of Edmonton would not and did not accept that one of their members of the Legislative Assembly of Alberta would be taken out of play and that they would have one less representative. They felt disenfranchised.

They spoke loudly, first through letters to the editor. Editorialists wrote that the MLAs for Edmonton were not standing up for Edmonton. They subsequently spoke in the next election about their dissatisfaction. Of course, that was not the only issue, but they were certainly dissatisfied with the loss of a member of the legislature.

I say to my friends opposite who advocate keeping this House at the same size by reducing the number of members from certain provinces that the citizens of those provinces will not accept it. They will argue, and argue correctly, that they have been disenfranchised, that they have lost membership in this House and that they care about representation. They will be upset.

This formula, which expands this House marginally, would allow for more representation for faster-growing provinces such as mine, Ontario and British Columbia, but it would not take away seats from any province. Therefore, it is a good compromise and a step toward representation by population, which is a fundamental concept of our democracy and needs to be preserved.

[Citizen's Arrest and Self-defence Act, December 1st, 2011]

Mr. Speaker, assuming this bill passes second reading, and it appears it will because I think it has support from all sides of the House, the bill will go to committee and the committee will call expert witnesses. As I indicated in my comments and as was stated, I think, by the NDP justice critic and certainly the member for Vancouver Kingsway, this is a good bill in principle, but it is a delicate balance to weigh the rights of citizens versus the rights of those who potentially cause harm to citizens.

Yes, we will vet the language. We will call on experts from victims groups, from police groups and presumably from academia, as we do with every other bill. If it is appropriate to make technical or linguistic amendments to this bill to make it more precise, we will do it.

In fact, the opportunity for making modest amendments is presumably more likely in a bill where there is philosophical agreement with the contents of the bill and we do not use the committee as simply another mechanism for the opposition to oppose the bill. This committee will actually meet purposely to ensure that the bill has the appropriate language and balance between citizens and those who cause harm to citizens.

[Citizen's Arrest and Self-defence Act, December 1st, 2011]

Mr. Speaker, I am not sure that I fully understood that question. What I said in my comments was that the bill before the House, Bill C-26, clarifies the existing provisions, specifically sections 34 to 42, which create a rather complex and convoluted set of circumstances with respect to when reasonableness in defence of property would apply, depending on whether it is real property or personal property. This bill aims to, and I think succeeds in that aim, clarify when the defences of property and person would apply.

The member made some reference to Bill C-10 that I did not quite understand. However, certainly this bill fits in the entire umbrella philosophy between this bill and Bill C-10 in that the government continues to stand up for the rights of victims. This bill fits into that umbrella because when victims of crime take measures to defend themselves or to defend their property, as long as they act reasonably they ought to have the protection of the law.

[Citizen's Arrest and Self-defence Act, December 1st, 2011]

Mr. Speaker, in my constituency there are those types of groups, although they are very passive, such as Neighbourhood Watch, for example, where people watch out for suspicious activity in their neighbourhoods and then contact police. I do not know exactly which groups she is referring to in her riding or elsewhere, but I am not concerned that this legislation would give licence to vigilantism, whether it is organized or otherwise.

This law would make it very clear and specific that police are to be called as soon as possible when it is practicable, and that the right for citizens to make arrests are very limited to circumstances where it is not practicable to call the police, when they use only reasonable force and turn the individual over to the police as soon as it is practicable.

It is quite the opposite. This law would clarify to potential groups that take it upon themselves to provide safety for their neighbourhoods what they can and cannot do legally.

[Citizen's Arrest and Self-defence Act, December 1st, 2011]

Mr. Speaker, the hon. member is right. I am on the justice committee and public safety committee, and I know that when this bill was being drafted, great consideration given not to send the signal that vigilantism is to be promoted or encouraged, or that individuals ought to take the law into their own hands.

This bill, as other members from that side of the House have correctly pointed out, strikes a very close balance. I admit there are cases that come close to that line. Nonetheless as legislators we have to try to balance the rights of individuals to protect themselves, their families and property against those who would cause harm. The issue becomes one of reasonableness. The test will vary from situation to situation.

I represent urban constituents where access to police is relatively expeditious. Individuals in rural and remote areas have different challenges. The test in each circumstance, which I said in my comments will be fact specific, is one of reasonableness. If people act reasonably, they will have the protection of this law. If they do not act reasonably, they will be charged.

[Citizen's Arrest and Self-defence Act, December 1st, 2011]

Mr. Speaker, it is an honour for me to rise and add my contribution to the debate regarding Bill C-26, An Act to amend the Criminal Code (citizen's arrest and the defences of property and persons).

Bill C-26 will clarify for Canadians how they may respond to immediate threats to their property or to any person and the criminal acts necessitating urgent arrest situations.

Many members of the House will be familiar with well-publicized stories about Canadians being charged with crimes arising from situations where they were defending themselves, their family or their property. We can all imagine cases where people charged with a violent offence would claim that they had used violence to defend themselves without that necessarily being the true story. It is also likely that, from time to time, someone would use a minor threat or insult as a pretext to launching a violent attack against another.

We want to ensure that our laws do not allow for such cases, because if this were so, many innocent Canadians could be victimized with no repercussions against the wrongdoer.

On the other hand, the law must also provide greater clarity for force that is authorized and must set out the conditions which the aforementioned defensive action is acceptable. It is these very conditions that distinguish between revenge and genuine defence and between reasonable and unreasonable conduct.

Bill C-26 would extend the power of citizen's arrest in relation to property offences and would clarify the laws of self-defence and defence of property. These reforms are first and foremost about ensuring that Canadians understand the law in this area and that they are able to defend their vital interests and apprehend wrongdoers.

They are not required to stand by and watch their property be taken or destroyed or a stranger get assaulted. When the police are not around, Canadians need not be helpless. They can help themselves and their fellow citizens and, where necessary, assist in bringing wrongdoers to justice.

The reforms are also intended to assist police officers and prosecutors who exercise their discretion on a daily basis in respect to the charging and prosecuting, so as to minimize criminal charges being laid in situations where a defence is clearly available. Clarity in the law will hopefully weed out the cases of reasonable action, which need not result in criminal charges at all, and distinguish them from cases where there are discrepancies in the accounts given by witnesses, or where the threat posed was small, relative to the harm or injury caused. or other cases where there is some uncertainty about the reasonableness of the actions that were taken.

Finally, clarity in the law will help speed up trial process when charges are genuinely justified. It will also reduce unnecessary appeals and save precious time for our admittedly overworked court system.

How will Bill C-26 accomplish all of this?

First, it makes a modest extension of the existing power of citizen's arrest in the cases of property crime. Right now people can only arrest another if they find the person committing an act. This means that if there is no opportunity to arrest at the very moment, say for instance because the thief is faster and runs away, but there is an opportunity to arrest at some reasonable time afterwards, the law currently says that the arrest is unlawful. One literally has to catch the person in the act under the current law. This applies to people who try to bring to justice people who have committed an offence on or in relation to their property and stand to be charged and potentially convicted of a serious Criminal Code offence that they may have committed in the course of apprehending the suspect under those circumstances.

I hope all members can agree, and it sounds like all members do agree, that allowing people to arrest within a reasonable time of having witnessed a crime makes good sense. We do not want to criminalize otherwise law-abiding citizens and business owners who are trying to protect their property from thieves and mischief-makers. We know that situations occur where the person observed to have committed an offence returns to the scene of the crime or is seen elsewhere and can be easily identified. Arrest should also be possible in these limited circumstances.

Let us be clear that this proposal is a modest extension of the existing law. However, I know some Canadians are concerned that the proposed expansion of citizen's arrest powers will encourage vigilantism, but I do not agree.

The law of citizen's arrest already contains a very important safeguard against the arrester using the laws for improper purposes. The safeguard is a requirement in 494(3) of the Criminal Code, which states:

Any one other than a peace officer who arrests a person without warrant shall forthwith deliver the person to a peace officer.

This requirement ensures that a citizen's arrest becomes a matter of police attention as soon as is possible.

A new safeguard against vigilantism is included in this legislation, Bill C-26, in relation to the expanded powers of citizen's arrest. A person would now be able to arrest someone who they have witnessed committing an offence in relation to property within a “reasonable period of time” after the offence was committed.

However, where a person seeks to use this expanded power as a precondition, he or she must first determine whether it is feasible for a peace officer to make the arrest instead. There would now a double safety net against abuse of arrests where the arrest happens at some point in time after the original offence was witnessed.

The citizen arresters must turn their mind to the possibility of the police making the arrest. If they determine that under the circumstances that is not feasible, once they have made the arrest they must contact the police as quickly as is practicable and turn the suspect over.

Of course, the overarching rules with respect to using force during an arrest continue to apply. These rules ensure that a person making an arrest can use force but any such force must be reasonable in the circumstances. If the suspect willingly submits to the arrest, then no force is necessary. If he or she resists, then some force may be called for but the force must still be reasonable under the circumstances.

Excessive force, is, by definition, not reasonable. Deadly force, whether used by the police or by the citizen, can only be justified where human life is at risk. These rules are clearly set down in section 25 of the Criminal Code. Bill C-26 makes a reference to section 25 so that it is clear to everyone which rules apply.

This legislation would not increase the potential for vigilantism. The government discourages vigilantism. Bill C-26 is designed to allow citizens to protect themselves and their property only when police are not able to do that for them. It strikes a reasonable balance.

Bill C-26 would do more than increase the period of time in which a citizen's arrest can be made. A citizen's arrest situations often overlap with the defence of property, so Bill C-26 would ensure that the law governing the defence of property is clear and effective.

Currently, the defence of property is set out over five provisions that make many distinctions between slightly different circumstances, such as where the property in question is an object or land.

There is no need for different variations covering different cases when they are all based on the same general principle, that people should not be held responsible for a criminal offence if they act reasonably in an effort to protect property in their possession from being taken, damaged, destroyed or trespassed upon.

Bill C-26 would replace all of the existing rules with a single general defence that is capable of being applied to any type of property defence situation.

I must admit that I read the existing provisions just prior to standing up in the House and they are complicated and complex. I had a difficult time applying each rule to a specific fact situation. This is why Bill C-26 clarifies the rules with respect to defence of property. This is precisely the sort of simplification that will help the police gather evidence and make decisions or recommendations about whether criminal charges are appropriate. It is also the kind of simplification that Canadians need.

Property disputes often arise when someone is doing something unlawful, such as stealing a car or breaking into a house, but the defence can also arise in cases of genuine property disputes involving people who are all behaving lawfully but simply disagree about which of them is entitled to a particular item of property and what exactly they are allowed to do or not do with it.

For instance, disputes over access to a right-of-way or over where the a boundary is between two houses can and do lead to violence, just as conflict between a property owner and a thief or a criminal intruder can. The defence of property can apply to all these situations.

For that reason, it is inescapable that matters of property law must inform the criminal defence of property. That is why the defence of property is premised on the concept of “peaceable possession” of property. This concept has been interpreted by the courts to mean that the possession of property must not be seriously challenged by others. The seriousness of the challenge is assessed by looking to whether the challenge to the possession is likely to result in a breach of the peace. Of course, anyone who actually possesses property in circumstances that would involve a breach of the peace, such as protestors occupying a government building, should not be entitled to use force to defend their possession of that property in that circumstance.

Another aspect of the law that Canadians should know is that our courts have consistently held that intentionally causing death in defence of property alone, as opposed to in the defence of a person, is never reasonable. This principle is founded on the greater value to our society and to the value that it accords to human life over the value accorded to property. I am sure we can all agree with this reasonable approach. Nothing in this approach limits the availability of self-defence, which is the other defence that would be simplified by Bill C-26.

Any situation that creates a reasonable perception of a threat to a person, and this would clearly include a home invasion, or could even include a carjacking and other types of situations, gives rise to the ability to defend the person being threatened. Deadly force is permitted in defence of the person but, of course, as always, it must be a reasonable response given all of the circumstances.

The proposed new defences in Bill C-26 would capture the essence of the current law but in a much simpler way. The new laws would clearly and simply set out the conditions for a defensive action.

First, there must be a reasonable perception of a threat to property that someone possesses. Threats to property can involve threats to damage or destroy the property or to somehow render it inoperative. It can also include threats to enter certain types of property without lawful position, such as dwellings or other buildings or even a vehicle.

It is important to note that people can be mistaken about the threat that they perceive. What matters in these cases is whether the mistake was one a reasonable person could also make in identical circumstances. We cannot take away a defence where a person behaved reasonably and perceived the situation in a reasonable manner, even if the person were factually mistaken.

However, on the other side, if people make an unreasonable mistake, that is to say, if they fall below the standard of reasonable action and perception, they would lose the defence.

My friend from Vancouver Kingsway talked about the importance of the concept of reasonableness and the reasonable man in both civil and criminal law. I agree with his interpretation and its importance to both these situations and to this legislation.

The second element of the defence is that the person must genuinely act for a defensive purpose. Defence of property can never be a pretext for revenge. If the person does not really care about the property but to use the other person's threat as an excuse to assault him or her, the law would not justify that conduct.

Third, whatever actions are taken for that defensive purpose, they must be actions that a reasonable person in the same circumstances could also have contemplated and taken.

There is no way to describe what reasonable actions are because what is reasonable to defend a particular item of property against a particular type of threat is likely to be different from actions that could be reasonable to defend other property from a more or less serious type of threat. That is a very long sentence to say that these situations are all fact specific. It all comes down to the circumstances of each case.

These conditions are easy for Canadians to understand. They should also be relatively easy for the police to assess and juries as well, if charges are appropriate. Canadians will understand that they must genuinely be acting to protect property and not acting to take revenge against someone. They should also understand they must conduct themselves within socially acceptable standards within which a range of conduct is likely to be reasonable. As long as Canadians bring themselves within this range, they will be justified in using the force that they need to in order to keep themselves, their families and their homes safe.

Bill C-26 would also bring greater clarity and simplicity to the defence of self-defence. The proposed new defence would also apply in cases where a person uses force to protect a third person.

Today, the Criminal Code says that a person can only defend another person who is “under his protection”. The courts have given this phrase different meanings. It is not as clear as it should be that citizens can defend not just their children or their elderly parents, but they can also defend their fellow Canadians, even strangers, when they come upon them in a situation that presents a grave threat. The bill would clear up this aspect of the law, and appropriately so.

However, the reforms to self-defence would do more than just that. They would simplify the law in other ways and bring a variety of different rules into one single rule that would be applied no matter what the circumstances. The basic elements of self-defence mirror those of defence of property but they are even simpler because complicated property concepts are not involved.

Right now, four separate sections of the Criminal Code set out various versions of the defence of the person, each of which applies in a slightly different set of circumstances. The law simply is way too complicated and confusing. The fact is that such complexity is unnecessary because the basic elements of the defence are relatively straightforward. Bill C-26 seeks to reduce the defence to its core elements.

The conditions for defence of the person under Bill C-26 can be stated relatively briefly. First, the person reasonably believes that he or she or another person is being threatened with force. Second, the person acts for the purpose of defending himself or herself or the other person from that force. Third, the person's actions are reasonable in the circumstances.

As with the defence of property, mistakes can be made by the defending person as long as those mistakes are reasonable. The defending person must genuinely be acting with a defensive purpose and must not be using the threat as a pretext to engage in violence that he or she would otherwise desire to engage in. The reasonableness of the actions taken in defence of the person must be assessed in relation to all of the relevant facts and circumstances.

Bill C-26 proposes a list of factors to help guide this determination. These factors frequently arise in the self-defence context. Factors on this list include: whether any party had a weapon; the nature of the threat the person was facing; whether the individuals involved had a pre-existing relationship, especially if it is a relationship that involved violence or threats; and the proportionality between the threat and the response will be a critical factor in determining whether under the circumstances the defence was reasonable.

These factors are drawn from real cases and from the courts' interpretation of the current law. The purpose behind these provisions is to signal to courts, as well as to police and to prosecutors, that the essence of self-defence is not changing. Reasonable actions under the current law should continue to be reasonable under the proposed new law.

These are the sorts of determinations our courts make regularly. However, by simplifying the law, by clearing away the clutter and putting in the Criminal Code the crucial questions and crucial factors, Bill C-26 would clear the path for them to get straight to the important questions.

The bill would also make it easier for police at the scene of a crime to apply the law before making charging decisions. Bringing clarity to the law will mean that legitimate self-defence actions lead police and prosecutors toward the decision that laying a charge would not be in the interests of justice. In this way, the bill continues to stand up for victims.

The bill is a delicate balance but, as previous speakers have said, this is the appropriate balance to balance the rights of individuals versus the rights of people who cause threat to those individuals or to their property.

[Safe Streets and Communities Act, November 29th, 2011]

Mr. Speaker, I enjoy working with the hon. member on the justice committee.

As the hon. member knows, the issue of listing the states is complicated. There has to be a balance between the evidence of terrorism and what it will do to international relations with respect to those countries.

The remedy is that the list will be reviewed every two years by two ministers, the Minister of Public Safety and the Minister of Foreign Affairs. This will ensure that the list is updated periodically, to make sure that it adequately reflects the risk of certain states in their promotion of terrorism.