Joe Comartin

[Justice, June 7th, 2011]

Mr. Speaker, I can assure him that, in fact, it does have the support of this party and I believe of the Liberal Party as well. It is a welcome development that we move on this. This is a problem that we have known about for several years. In the last Parliament, Bill C-53 was here. We could have passed it at that time if the government had moved on it.

My question to the minister today is this. Will he pledge to the House that we will have the bill before the House and pass it before we leave in the spring?

[Justice, June 7th, 2011]

Mr. Speaker, last week, Quebeckers and Canadians were stunned when Justice James Brunton released about 30 accused people because of the delays expected in their megatrial. The police did their job. The prosecutors did their job. It is time for Parliament to do its job.

Would the Minister of Justice not agree that it is time to introduce a bill in Parliament to put an end to the problems caused by these megatrials?

[Criminal Code, March 24th, 2011]

Mr. Speaker, I join with my colleagues from the Liberals and Conservatives in congratulating the member for Ahuntsic for her work on the bill.

It is obvious from the speeches we have heard so far that all parties are aware of the serious nature of human trafficking. I was just speaking to my colleague and we were wondering when we began to identify this.

From my own practice as a lawyer in the Windsor area, we began identifying it as early as the mid-eighties, seeing the biker gangs, in particular, trafficking women, ostensibly as exotic dancers, but often times doubling as prostitutes. Those women had very little control over their lives, all of it being controlled and enforced by the bikers. That was both domestic and international, because we had them moving back and forth between Windsor and Detroit. We have known about this for quite some time.

I want to echo the comments by my colleague from the Liberal Party that it really is a shame. We have seen the quite excellent work and the passion that the Conservative member for Kildonan—St. Paul has brought to this issue, both in the House and on the Hill and in the country as a whole. However, she has not had basically any support from her own government or party.

The bill that went through under her name earlier last year was a step forward. It addressed one part of this problem. Without taking, in any way, away from the work that was done, it was a relatively small part of the overall problem. It addressed it and it was a way of dealing with it. However, we need a much more comprehensive response to this, both in changes to the Criminal Code, some of which were seen in the bill presented by the Bloc member, but much more than that. In my own opinion, we also need much more practical resources being put into this battle. By that I mean greater police forces to do the investigation and additional prosecutors specifically trained in dealing with this issue.

It is a slavery issue. There is no other word to accurately describe it in the common vernacular. This is slavery. Violence is used on a regular basis, both physical, direct to the victims, and threats to them and their families. Quite significant resources need to be put into play above and beyond the amendments we need to the Criminal Code to make it easier for our prosecutors, in particular, to prosecute these offences, especially going after the gangs.

Because I do not want to take up a lot of time today, I will address the bill itself. Generally the NDP would be supportive of this. Even though it is a private member's bill, I can say that on behalf of my party. I do have a couple of reservations about it. I think the issue around the presumption, around the exploitation issue, is open to a challenge. Because of the way it is worded, which is quite excellently, I hope we would survive that charter challenge. The challenge would be around whether it were specific enough to be clear what the offence would be. It will be interesting to see if we can get that through. I am optimistic we will, but I would expect we will have a challenge.

The other one that may be a greater problem in terms of its consequences, its usefulness, is the issue of how we would treat consecutive sentencing. The Supreme Court of Canada has been very hard, as have most of our courts across the country, on enforcing the concept of proportionality in sentencing. Even though we would say that a person committed this offence, assaulted the victim and also exploited her, because it is almost always a women that is being exploited, which would be two different charges, we would give the person a certain length of sentence for the assault but the exploitation would be consecutive.

Even if we do that, I am not convinced the outcome would be much longer sentences. The courts would refer to the proportionality principle, which would say that in total they want the person to be in custody for this length of time. Therefore, the two sentences in total, even though they are consecutive, may not be any longer than the first one would have been with the second one served concurrently. I am not sure we will see much change.

I will finish with again congratulating the member for having done this work. I just wish the government would take a holistic view to this problem and get at it both in terms of amendments to the code through this chamber and also at the street level where we need more police and more prosecutors to really get at this effectively.

[Citizen's Arrest and Self-defence Act, March 7th, 2011]

Mr. Speaker, I have not come to a conclusion on that. I can see where there is that possible interpretation but it is not at all clear.

As I said in my comments, the whole concept of justification is very poorly treated in these amendments. Therefore, it is really hard to understand what the end result will be. I do not think it is stretching it all, nor fearmongering, that we are looking at unintended consequences because it is drafted so generally as opposed to a number of the specifics that we have in the existing section.

I will add one additional point around the responsibility that we have as citizens to protect ourselves. Our courts have made it quite clear, and this goes back into all sorts of interpretations and decisions from England, that as we develop our society we place police officers in the position of playing this role. The role of the citizen for self-help is always the exception.

I will make one further point. Our courts have made it quite clear that in this situation, for instance, if the person is being arrested, the police officer must give the warnings under the charter, which are the right not to self-incriminate, et cetera. There has been one decision that citizens do not have that responsibility, but it comes back to the point that our courts have been very clear that they want to see the use of self-help as the exception and they want our police officers to be doing the job that they have been mandated to do.

[Citizen's Arrest and Self-defence Act, March 7th, 2011]

Mr. Speaker, let me emphasize that it is important to get that through. I have been on the justice committee for over seven years now and up to this point we have not heard from any government witnesses, ministers or officials that there is a crying need to amend those other eight sections of the Criminal Code.

After I saw what was being proposed in the bill, I had the opportunity to spend time with criminal defence lawyers, prosecutors and, more important, police officers and police chiefs. They are all telling me that they do not see any problem. They understand we want the amendment to section 494 because of the Chen case but they are not aware of any problem with sections 34 to 42, the provisions that allow for self-defence of the person or property. There just does not seem to be a crying need for it.

Why the government would have combined them when there is a crying need for amendments to section 494 and why it is moving down that road at all really begs the question. There is no crisis that needs to be addressed. That much is fairly clear.

[Citizen's Arrest and Self-defence Act, March 7th, 2011]

I want to be very clear that I mean small “l” liberal in its interpretation of the section because a small “c” conservative interpretation of it could have very easily come to a different conclusion.

That brings me to the second part of the member's question, which is the importance of getting this amendment through. The same kind of fact situation could come up, but there then may be a judge applying a rigid conservative interpretation and convicting somebody like Mr. Chen with maybe the facts being slightly different.

[Citizen's Arrest and Self-defence Act, March 7th, 2011]

Mr. Speaker, one needs to be careful of the factual situation. My colleague is correct about the decision by the court, that it saw this as a continuous event.

In effect, after the original theft, Mr. Chen believed he was able to recognize the thief who was in his shop again acting in a fashion that led Mr. Chen to believe he was at risk of a further theft occurring. The continuous nature of it was not just the original offence and then Mr. Chen identifying the person. It was identifying the thief and being concerned that another theft was about to occur.

When we consider that, it was quite reasonable for the court to say that it was reasonable that when Mr. Chen saw the person a very short time later on the street, this was one continuous event: the original theft, the suspected attempt at another theft and now the apprehension. That is the way the court drew those conclusions.

I need to be blunt. When we look at the rigidity of the wording in section 494 as it is, the court was being very, although I hate to say it, liberal in its interpretation.

[Citizen's Arrest and Self-defence Act, March 7th, 2011]

Mr. Speaker, the bill is really two bills and probably should not be drafted in this way.

If we deal with the part that it appears all parties agree with, and perhaps picking up where my colleague from Moncton—Riverview—Dieppe finished off, section 494 of the Criminal Code as it is now places restrictions on the use of citizen's arrest. In particular, in the simple reading over the years there have been two conditions where it is not a police officer who does the arrest. The first is the arrest has to occur on or immediately adjacent to the property where the crime occurred and it has to be done contemporaneous with the event.

I think everybody in the House and the vast majority of Canadians know the situation in the Toronto Chen case. The individual was suspected of committing a crime of theft once before. He returned to the property and was confronted by the owner. He fled and then was seen subsequently by the owner and then apprehended, away from the property and clearly not contemporaneous with the potential additional theft that it was suspected he would have perpetuated on that day. The shop owner was subsequently charged.

I have had a great deal of discussion with police officers, including chiefs of police, across the country. Generally there is this sense that they would have found other ways of not charging the shop owner in that case. However, they recognized, as well, that to clarify the Criminal Code, section 494, at this period of time, both because of that case and because of other incidents where police officers and prosecutors had been caught by a strict interpretation of that section, they had to proceed with charges when they would have preferred not to.

As my colleague from British Columbia mentioned earlier, and we have heard repeatedly in the House, our colleague from Trinity—Spadina had proposed some amendments to the section some time ago, shortly after the Chen case became public and notorious. It was to introduce two concepts of reasonableness, a reasonable length of time and with a reasonable apprehension that the person would not be brought into custody and charged because there were no police officers available.

The government has added an additional provision to clarify the issue around the role the owner of property must perform. It is not only that it has to be within a reasonable period of time, but the government has put in specific wording, in addition to the reasonable time test, that the individual citizen who considers making a citizen's arrest must also “believe on reasonable grounds that it is not feasible in the circumstances for a peace officer to make the arrest”.

We have heard a number of comments in the public, from the legal community and occasionally from a police officer, around vigilantism being fostered or encouraged by this amendment. The very fact that we have put in this criteria that people have to make the apprehension within a reasonable period of time and be under the belief that if they do not make the arrest, there will be no police officer available to make the arrest, the individual will escape responsibility for the alleged criminal act.

The government's proposed amendment to section 494 is very similar to what the NDP had proposed, with that one additional strengthening of it, which we would be in support of and, as we heard today and previous days, the other opposition parties would be in support of that as well. Unfortunately, the bill does not end there and it should have. We should have run this through quite quickly with all party support.

Instead, the government has lumped in a bunch of other amendments, which it so commonly does. It has taken sections 34 to 42 of the Criminal Code and compressed them down into sections, which would now be sections 34 and 35. I am not sure what the government will do with the numbering of the rest of the code because it would shrink by six sections, if my math is correct, if these amendments were to go through.

The government seems to be somehow drawing an analogy of the principles that are contained in section 494 with those in sections 34 to 42, and that does not follow. If we look at the rest of the sections around section 494, they are very much about the authority of police officers to arrest, either with or without warrants, and the role of both the prosecutor and the judiciary in that regard as well.

There are a number of sections, starting at around 492-493, running down through to about section 200, that deal with that issue. Section 494 should properly be there. The concept of citizen's arrest fits in very appropriately there. It is not the same as the provisions in sections 34 to 42.

If I do a quick summary, what is in sections 42 down to 34 are provisions for self-defence of our person, defence of our principal residence, defence of commercial property with regard to trespass and other crimes on those properties and our right to defend our ownership of personal property, from cars to jewellery to furniture to clothing, et cetera.

The sections in that part of the Criminal Code, and it is early on in the Criminal Code, reflect law that has been in the code since it started back in the 1890s in Canada and back to even before we had criminal codes and criminal legislation in England. These would have been fiats from the king when these concepts began to evolve, and they have evolved over hundreds of years, to the point where we have them now encoded in the Criminal Code.

What is being proposed, and I cannot put it any other way, are radical changes to those sections. I have looked at it quite closely over the last few weeks since we first saw the initial draft of the bill. What jumped out at me was some wording that, clearly, the government had taken from interpretations of those sections 34 to 42, which are judicial decisions. Because the language was more modern than what was in the Criminal Code, it thought it would be a good to add it. Unfortunately, it also seems to have left out some very important legal principles, and I say this from the vantage point of both lawyers who prosecute offences and our police and defence lawyers who defend.

I will use as one example the provisions in those sections 34 to 42 with regard to the concept of provocation. I will do it in a three-step process.

If the perpetrator of the provocation is assaulted, that perpetrator is then entitled to self-defend but to a lesser degree because that individual caused the provocation of the assault. There is a sort of quasi-defence there, both to the assault and then the defence of that assault. That concept has evolved and been interpreted by our courts and is quite well understood, not by the average citizen but by lawyers and judges in our criminal courts.

I do not see any reference at all to the concept of justification. This one is certainly more complicated, but it is not the same as provocation. People have reason to believe they can use physical force on other people and similarly they can use perhaps excessive force to repel what is perceived as an assault on either them or their property. That concept does not appear in either of the sections that are purported to replace sections 34 to 42.

Another concept that appears vaguely is the concept of what we used to refer to either as colour of right or claim of right. I feel like I am back at law school. I have instructed at university and I feel I am back doing that same kind of thing. These are very basic legal concepts that are usually taken in the first term of first year law school, but are sometimes repeated in later years if specialty courses are taken in criminal law.

The concept of colour of right or claim of right crops up quite regularly in matrimonial disputes. Someone says that he or she is the registered owner of the property and threatens to throw out someone who has been living at that property as a partner for a lengthy period of time. The person being evicted has a claim of right to stay there. That concept does not appear, at least clearly, in the proposed amendments.

There is a similar type of concept in commercial relationships involving multiple business partners. One person may be the registered owner of the business, with the majority of shares, and the other person may want to come back on the property to remove stuff or whatever. This claim of right allows an individual to go back on to the property. That only appears once in the proposed amendments and it seems to be absent in other areas.

Going back to my first year at law school, I have to wonder if this bill was drafted as we were dealing with the issue of Mr. Chen and his citizen's arrest. These principles should be in the amendments. It may be done in a different way. An argument could be made that the sections are being modernized, brought into the 21st century. I am a strong advocate of the need to bring our Criminal Code into the 21st century because there are all kinds of problems with it.

I do not know if the government was trying to do that. I do have serious doubts, at least in part, that the it did not accomplish that in terms of keeping those principles but modernizing the wording around them. If that is what the government is doing, then I have serious problems with the bill because it did not accomplish this.

On the other hand, there may be another agenda here, and I am not sure what it is other than to move toward a more U.S.-style of what we in law talk about as self-help. Perhaps the agenda is to move more toward that which is allowed much more broadly in the U.S. criminal justice system than it is in Canada, Britain, Australia or New Zealand, countries that have similar jurisdictions both in terms of the way our law developed and the way we deal with the issue of crime and the ability to use self-help to fight crime.

Whether that other political ideological agenda exists is not clear, but there must be concerns that with some of these proposed changes we may in fact go that way.

Due to our support of section 494 and wanting to correct the problem in the Chen situation, I believe most of us will support the bill to go to committee. However, when the bill gets to committee, we will need very clear explanations as to the drafting behind the bill and whether the concepts of provocation, justification and claim of right have been done away with in most cases.

Having set out those parameters and limitations in the bill, it goes without saying that this will be a source of great wealth for lawyers. Both prosecutors and the defence bar will literally spend years reinterpreting the concepts in the bill because the historical principles that applied around the use of self-help appear to have changed so radically. After listening to the speeches from the government, I have determined that we have not had any rational explanation as to why it has made this move. It just does not seem to add up.

It is unfortunate that the government coupled it with the amendments to section 494. It would have been nice to get that as a separate bill. I know my colleague from Trinity—Spadina had offered the government to make it a short separate bill containing a two-paragraph amendment to the existing section 494 to be able to get it through the House rapidly.

As it stands now, once this bill gets to the justice committee it will be backed up behind other bills that are already there. We will need to spend a great deal of time to determine if there are unintended consequences, whether long-standing legal principles will be undermined and, if so, what that would mean to the practice of law in Canada and the right of citizens to defend themselves and their property, whether it be their home or their commercial interests. We will need a great deal of evidence in order to understand that.

As I have indicated, the NDP will be supporting this going to committee because of our support for the amendments to section 494 and the whole concept of making it clear when the power of a citizen's arrest can be used. However, we have very grave concerns about the balance of the bill. That will require a great deal of work at the justice committee in order to understand it.

[Citizen's Arrest and Self-defence Act, March 7th, 2011]

Mr. Speaker, my colleague from the Bloc made some opening comments about this, but can he see any advantage at all in the proposed amendments in the first part of the bill, not those relating to section 494, but those relating to sections 34 to 42 of the code that deal with the right of self-defence, the right of defence of property, both residential and commercial, and the right of defence to protect one's other personal assets? Does he see anything in the proposed amendments in regard to those sections that would advance the law or protection for our communities?

[Strengthening Aviation Security Act, March 1st, 2011]

Mr. Speaker, obviously, I will answer quickly.

No, that is not what Canadians expect. They expect their rights to be protected, their privacy to be protected, and their ability to move around the globe in a safe fashion to also be protected; none of which is guaranteed in this legislation at all.