Robert Goguen

[Safe Streets and Communities Act, December 2nd, 2011]

Mr. Speaker, I am a bit concerned by the fact that the question is on procedure and not on the substance of the bill.

This bill is substantive. It includes 208 measures for protecting the public. Public protection is the very purpose of the bill. Canadians gave us such a strong mandate in order to protect people. That is what Canadians wanted.

Instead of talking about procedure, let us talk about the real purpose of the bill: to protect the most vulnerable.

[Safe Streets and Communities Act, December 2nd, 2011]

Mr. Speaker, I wish to advise that I will be sharing my time with the hon. member for Carleton—Mississippi Mills.

I am pleased to participate in the third reading debate on Bill C-10, the safe streets and communities act. There is no doubt that this bill is a source of contention, which is pretty obvious, but not everyone is opposed to this bill. Many witnesses who appeared before the committee supported it. For instance, the bill's proposal to amend the Controlled Drugs and Substances Act was supported by the law enforcement representatives who testified, as well as some academics and some victims groups.

Before speaking to the bill, I would like to quote from a witness who appeared before the committee in 2009 and testified on Bill C-15. Mr. Chuck Doucette, vice-president of the Drug Prevention Network of Canada, had this to say about the drug situation:

Things have changed from when I first started in drug enforcement in 1977. Over those 30 years, I saw the sentences for drug offences getting progressively weaker. At the same time, I saw the problems related to drug abuse getting progressively larger. I also saw the drug scene in downtown Vancouver increase as the enforcement efforts in that area decreased. From my perspective, I do not see how anyone could possibly examine the past 30 years and make a case that weaker sentences lead to less damaging social consequences. My experience is that the more lenient we got, the more problems we got.

The provisions of Bill C-10 amending the Controlled Drugs and Substances Act are, for all intents and purposes, the same as the provisions contained in Bill C-15, which died on the order paper, and Mr. Doucette's words are still as accurate today as they then were.

I would like to take a few moments to explain the nature of the problem that the drug-related provisions of Bill C-10 seek to address. The bill is aimed at tackling the problem of drug crimes, particularly drug trafficking and drug production, both of which occur in all regions of Canada. Over the last decade, domestic production and distribution of marijuana and synthetic drugs has dramatically increased, resulting in serious problems in some regions of Canada and often overwhelming the capacity of law enforcement agencies.

These operations pose serious health and public safety hazards to those in or around them. They produce environmental hazards, pose cleanup problems and endanger the health and lives of communities. They are lucrative businesses and attract a variety of organized crime organizations. Huge profits are available with little risk to operators, and these profits are used to finance other criminal activities.

Penalties in sentences are considered by many to be too lenient and not commensurate with the level of harm imposed on communities by such criminal activities. According to Statistics Canada, marijuana cultivation offences more than doubled from 1994 to 2004, rising from approximately 3,400 offences in 1994 to 8,000 in 2004.

According to a study on marijuana grow operations in British Columbia in 2003, approximately 39% of all reported marijuana cultivation cases, 5,414, were located in B.C. Between 1997 and 2000, the total number of these cases increased by over 220%. Although the number of individual operations in B.C. levelled off between 2000 and 2003, the estimated quantity of marijuana produced increased from 19,729 kilograms in 1997 to a seven-year high of 79,817 kilograms in 2003, this because of the size and sophistication of individual operations.

These few observations were made so that there can be an appreciation of the seriousness of the drug crime situation in our nation. The Government of Canada has recognized this. It has recognized that serious drug crimes, such as large-scale grow operations, pose a threat to the safety of our streets and communities, and the drug-related provisions of Bill C-10 are part of the government's strategy to address this problem.

This bill proposes amendments to strengthen provisions in the Controlled Drugs and Substances Act regarding penalties for serious drug offences by ensuring that these types of offences are punished by the imposition of a mandatory minimum penalty. With this bill, the government is demonstrating its commitment to improving the safety and security of Canadians and communities across Canada.

As has been stated before, the government recognizes and acknowledges that not all drug offenders and drug offences pose the same risk of danger and violence. Bill C-10 recognizes this reality, and that is why the bill proposes a focused and targeted approach to dealing with serious drug crimes.

Accordingly, new penalties will not apply to the offence of possession, nor will they apply to offences involving all types of drugs. What the bill does is focus on more serious drug offences involving more serious drugs.

Overall, the proposal represents a tailored approach to the imposition of mandatory minimum penalties for serious drug offences, such as trafficking, importation, exportation and production involving such drugs as cocaine, heroine, methamphetamine and cannabis. In my view, this bill contains a seamless approach to dealing with serious drug offences.

I should note that the drug-related provisions of the bill were amended in committee. Indeed, the government moved an amendment to clause 41, which deals with the imposition of a sentence of imprisonment of at least nine months for the offence of producing one to 200 plants inclusively where the production is for the purpose of trafficking and where there are certain aggravating factors. The adoption of this motion narrowed the offence such that the minimum penalty would now apply to instances in which more than 5 plants but fewer than 201 are produced, the production is for the purpose of trafficking and certain aggravating factors are present. Accordingly, the minimum penalty would no longer apply for the production of five plants or fewer.

The government's position on drug use is clear: offenders involved in serious drug crimes need to realize that there are serious consequences for their actions. I believe that reasonable Canadians agree that this approach should be applied to drug offenders whenever these offenders are involved in trafficking dangerous drugs, growing drugs like marijuana, or producing synthetic chemical drugs.

I am satisfied that Bill C-10 has been thoroughly examined by the Standing Committee on Justice and Human Rights and that we are rapidly approaching our goal of seeing this legislation passed into law. This bill is part of the government's continued commitment to take steps to protect Canadians and make our streets and communities safer. Canadians want a justice system that has clear and strong laws that denounce and deter serious crimes, including serious drug crimes. They want laws that impose penalties that adequately reflect the serious nature of these crimes. This bill accomplishes that objective.

[Justice, December 2nd, 2011]

Mr. Speaker, first, our approach is obviously a very balanced one.

Since we are talking about numbers today, and even though we do not govern based on statistics, I want to mention a Léger Marketing poll that was conducted in recent weeks. It shows that over 80% of Quebeckers support a more repressive justice system, with stiffer sentences. Another survey by the same firm shows that one out of every two people living in large urban centres, which means half of all Quebeckers, do not feel safe.

[Safe Streets and Communities Act, December 2nd, 2011]

Mr. Speaker, I listened carefully to the hon. member's speech. It is very clear that she is opposed to Bill C-10. She talked about statistics, but I wonder if she has seen a poll from Leger Marketing, which was published in recent weeks. This poll shows that nearly 80% of Quebeckers are in favour of a more repressive justice system. Another poll released yesterday shows that one out of two Quebeckers in major cities does not feel safe.

The hon. member was honest. She admitted that, even though she is a lawyer, she is not an expert in criminal law. I would ask her to comment on what Marc Bellemare, Quebec's former justice minister and attorney general, and a criminal law expert, had to say. I quote:

Everyone agrees with rehabilitation. But first, do we have the right to provide better protection for victims and children? It is time to do that. The polls show that four out of five Quebeckers want our justice system to be stricter. I agree 100%.

That is an argument in favour of Bill C-10. He absolutely agrees with these measures.

He also spoke about Quebec values and said:

Minister Fournier did not speak for all Quebeckers in Ottawa. I think this bill is in line with Quebec's values.

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

Madam Speaker, I would like to touch on three issues that the hon. member discussed: vigilantism, the use of excessive force, and the jurisprudence that has guided us on the provisions that we are amending.

I acknowledge, as the hon. member has said, that the question of excessive force remains intact. Certainly that is a question of public order and should be maintained.

One of the triggering points in the ability to make a citizen's arrest is that the person making the citizen's arrest has reason to believe that there is no prospect of an enforcement officer being able to respond.

First, in the member's opinion, is that a reasonable safeguard in trying to guard against vigilantism? Would he agree that although it is perhaps not an absolute guard against it, it is a reasonable attempt?

Second, we talked about the body of law that has interpreted the various provisions of the act that are being consolidated now. Would the member agree that there is a cycle to the law? An enactment is made and is interpreted by jurisprudence; now we have a recodification, and the cycle will recommence with the interpretation of the new provisions. Certainly we will still be able to draw from the previous jurisprudence in guiding us on what the boundaries of these new provisions will be.

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

Madam Speaker, the question of whether or not charges are or are not laid relates to the facts at hand and whether the force used was reasonable in the context and if the intruders have weapons. It is a far different situation if they are caught red-handed breaking in with no weapons. It is always hard to determine, given the circumstances, how the defence will apply or not. It depends really on the circumstances.

There is one important thing to retain from this whole amendment. With these changes and the simplification of the rules, although they are reasonable, it will be easier for law enforcement authorities to make a call as to the application of the law.

The law as it stands right now is far too complex. Because police authorities are not certain whether or not they should lay charges, they will lay the charges and see what the court determines. That obviously clogs the docket, slows down the criminal process, and no one is served by that. Having the rules of the game much clearer will serve not only the police authorities but also the law-abiding citizens who seek to protect themselves and their property.

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

Madam Speaker, I would take no issue with the hon. member's comment. It is a matter of proportion and reason.

In essence, what the law proposes to do is make the ground rules clearer. The issue arises only in situations of emergency. We cannot expect people to always react in the same way. However, there has to be a framework in society of exactly what is reasonable for public order, not excessive but what is reasonable, for ordinary citizens who are not used to reacting in emergency situations in the manner that trained officials are.

Therefore, I would agree that there must be a framework that is reasonable. Otherwise, it could create public disorder. That is certainly not what is sought.

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

Madam Speaker, that question is certainly very relevant. It is a good example of how the application of force of that nature would probably be ruled to be excessive and beyond the scope of what might be reasonable. Obviously, setting off a shotgun to deter criminals is far excessive to perhaps setting up an alarm system, which might otherwise alert the police authorities and have them respond immediately.

The intent of the law is to always give the police authorities the first obligation to respond, then to permit citizens to respond to situations wherein police cannot respond, and to of course only use what is considered reasonable force to protect themselves or their property.

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

Madam Speaker, what is reasonable in any context depends on a number of factors. When a citizen's arrest is made, the citizen's responsibility remains to immediately turn over the person detained to the authorities. The law has not been thrown out. When an arrest is made, the citizen must turn the person detained over to the police right away. If they are in a remote area and cannot contact the police or the police must travel a much greater distance to pick up the accused, then circumstances will naturally dictate when this happens. However, the objective is to immediately turn the person over to the authorities, if possible.

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

Madam Speaker, I am pleased to lead off the debate on Bill C-26, An Act to amend the Criminal Code (citizen's arrest and the defences of property and persons). Bill C-26 was first introduced in the last Parliament as Bill C-60. The bill is a responsible expansion of the citizen's power of arrest and also includes a long overdue simplification and clarification of the law on self-defence and defence of property.

Prior to the introduction of former Bill C-60, the issue of citizen's arrest had been subject to two private member's bills and numerous discussions in parliaments, newspaper and, no doubt, in coffee shops across the country. So the straightforward reform proposed for the law of citizen's arrest in the bill is well understood and well supported by all parties. I will speak to it only briefly today.

The proposed reforms to the defences of property and persons have different histories and goals. Some members were surprised by the inclusion of these reforms in Bill C-60 when it was introduced. I would like to start by explaining why these reforms were presented together.

While defence of property and the power to make a citizen's arrest are separate legal concepts, in the real world, these concepts can sometimes overlap. For example, imagine a security guard who discovers an intruder in a building who is heading to the door with a laptop in hand. The security guard can apprehend the thief and then call police so that the thief can be charged. That is an example of a citizen's arrest. That is the typical situation in which citizens make the arrest themselves and then call the authorities.

In this emergency situation, the law authorizes the security guard to make the arrest, in the place of the police, but the security guard could also use a minimal amount of force against the thief. For example, the guard could grab the thief's arm while trying to grab the laptop. Because the intent is different, this action could be considered defence of property—the laptop, in this case. If the thief resisted or responded with force, it would be a matter of self-defence if the guard had to defend himself.

While there are three distinct legal mechanisms, they are all directly relevant to the broader question of how citizens can lawfully respond when faced with urgent and unlawful threats to their property, to themselves and to others.

Our government recognizes that all of these laws, any one of which may be pertinent to a given case, must be clear, flexible and provide the right balance between self-help and the resort to the police. That is why all these measures are joined together in Bill C-26.

I will now to turn to a brief description of the proposed citizen's arrest reforms and to devote the rest of my time to the reform of the defences.

On the question of a citizen's arrest, no one can dispute the fact that arrests are primarily the responsibility of the police. This will remain their responsibility and there is no change in that regard. However, in recognition of the fact that the police are not always present when a crime is committed, the Criminal Code has long authorized citizens to arrest other citizens in narrowly defined situations, including where an offence is committed on or in relation to property.

Section 494(2) of the Criminal Code currently allows for an arrest only where a person is found committing an offence. That said, there have been occasions recently where a citizen effected an arrest a short while after the crime was committed because that was when the opportunity arose. These cases have raised questions about whether the scope of the existing arrest power is appropriate.

Our government believes that it is reasonable to extend the period of time allowed for making a citizen's arrest by allowing arrest within a reasonable time after the offence is committed.

To discourage vigilantism and to ensure that citizens only use a slightly expanded power of arrest in cases of true urgency, Bill C-26 also includes a requirement that the arresting person reasonably believes that it is not feasible in the circumstances for a peace officer to make the arrest. These are reasonable and responsible reforms and all members are urged to support them.

Although our citizen's arrest reforms are rather simple, the changes that they will mean for defence of the person and defence of property need more detailed explanations.

The provisions on defence of the person and defence of property, as they are currently written, are complex and ambiguous. Existing laws on self-defence, in particular, have been the subject of decades of criticism by the judiciary, including the Supreme Court of Canada, as well as lawyers, academics, lawyers' associations and law reform organizations. Much of the criticism has to do with the fact that the existing law is vague and hard to enforce. It is fair to say that reform in this area is long overdue.

These kinds of defence were included in the very first Criminal Code. The wording of this part of the legislation has remained very similar since the original Criminal Code was written in 1892. Defence of property was covered in nine separate provisions containing a number of subcategories and other very complex provisions that have become obsolete and unnecessary.

Professor Don Stuart of Queen's University, whose textbooks on criminal law are widely used by first year law students in this country, has written:

The defences of person and property in Canadian law are bedeviled by excessively complex and sometimes obtuse Code provisions.

It is important to be clear, however, that the criticisms of the law do not pertain to its substance but rather to how it is drafted. Self-defence and defence of property are and have always been robust in Canada. There has been a lot written in newspapers about the right to self-defence and protection of one's property, some of which suggests that these rights have been diminished or are inadequately protected. This is untrue. The law is robust, despite the fact that the rules as written in the Criminal Code suffer from serious defects, and despite the way the media have portrayed these issues in recent times.

Parliament has a duty to ensure that laws are clear and accessible to Canadians, criminal justice participants and even the media. That is exactly what we are proposing to do in Bill C-26, even though the actual rights of Canadians are robust and upheld in Canadian courts on a daily basis. When the laws which set out these rules are confusing, we fail in our responsibility to adequately inform Canadians of their rights. Obviously, unclear laws can also complicate or frustrate the charging provisions of the police who themselves may have difficulty in reading the Criminal Code and understanding what is and is not permitted. Bill C-26 therefore proposes to replace the existing Criminal Code provisions in this area with clear, simple provisions that would maintain the same level of protection as the existing laws but also meet the needs of Canadians today.

How are we proposing to do this? I will start with the defence of the person because it arises more frequently than does the defence of property, because calls for reform have focused on this defence, and because of the fundamental importance of the right of self-preservation in Canadian criminal law.

If we were to ask ordinary Canadians if they think self-defence is acceptable, they would say that it is acceptable when their physical integrity or that of another person is threatened. I think they would also say that the amount of force used should be reasonable and should be a direct response to the threat.

The reforms proposed in Bill C-26 are centred on those basic elements. Because of the general nature of these ideas, one law based on these fundamental principles should be able to regulate all situations that arise involving defence of the person. We simply do not need different regulations for every set of circumstances. All we need is a single principle that can be applied to all situations.

Under the new defence, a person would be protected from criminal responsibility if there are three conditions which are met: one, the person reasonably believes that he or she or another person is being threatened with force; two, the person acts for the purpose of defending himself or herself or another person from that force; and three, the person's actions are reasonable in the circumstances. Let me clarify a few salient points.

First, unlike the current law which creates different defences for different circumstances, the new law would cover both self-defence and defence of another. The same criteria govern defensive action in both situations.

Second, with regard to the defender's perception of threat to himself or herself or another, members should know that a person is entitled to be mistaken about his or her perception, as long as his or her mistake is reasonable. For instance, if a drunken neighbour walks into the wrong house at 3 a.m., the homeowner may well be reasonable in perceiving a threat to himself and his family, even though there was in actual fact no threat at all, just a tired, drunken neighbour in the wrong house.

The law must still allow people to use defensive force where they make a mistake that any reasonable person could make. Unreasonable mistakes, however, are not permitted. If a person seeks to be excused for the commission of what would otherwise be a criminal offence, the law expects the person to behave reasonably, including in the person's assessment of threats to himself or herself, or others.

Third, the defender's purpose is paramount. If a person acts for the purpose of defending himself or herself or another, the defence is available. Defensive force cannot be available as a disguise for what is actually revenge. Conduct for any purpose other than protection falls outside the bounds of defensive action and the person stands to be convicted for it.

Fourth, if the other conditions are met, then the defender's actions must be reasonable in the circumstances. What is considered reasonable in the circumstances depends entirely on the circumstances of each specific case, as assessed by the reasonable person test. The question is: would any reasonable person in the defender's situation have done what the defender did? There is not just one reasonable response for every situation. The important thing to know is that the defender behaved in a way that the judge considers reasonable in those particular circumstances.

The list of factors that may be relevant in determining whether the act of defence was reasonable is far too long to be included in the Criminal Code. Nonetheless, to facilitate the deliberation process, without limiting the nature and scope of the factors that could be taken into consideration, the proposed reform provides a list of well-recognized features of many self-defence situations presented before our courts. This list will guide judges and juries in their application of the new legislation, and confirms that current case law on self-defence continues to be applicable.

Factors that are on the list and likely to be relevant include the nature of the threat and the response to it. For instance, was the attacker threatening to break a finger or to kill? Another factor is whether weapons were present. Another factor is the relative physical abilities of the parties, such as their age, size and gender. Naturally, a petite, elderly woman and a fit, young man may have different options available to respond to the same threat. Another factor is whether there were any pre-existing relationships between the parties, including any history of violence and abuse.

This last factor is particularly important in cases where a battered spouse must defend against an abusive partner. As the Supreme Court has noted in the landmark case of Lavallee, it is sometimes difficult for a jury of citizens to understand how a battered spouse might stay in an abusive relationship or how the person might come to understand the patterns of violence of the person's partner. These cases do not arise often but when they do, sensitivity to these factors is crucial.

The reasonableness of the response must take into account the nature of the relationship and the history between the parties in arriving at a just result.

The proposed law would establish a simple and meaningful framework for decision-making. The relevant facts must be determined first, and then the rule can be applied. Police and prosecutors, in assessing whether a charge should be laid, should gather all the facts and then assess them against the criteria set out in the defence to determine whether there is a reasonable prospect of conviction and whether charges are in the public interest. If charges are laid and the defence is advanced, the trier of fact will be asked to determine, based on his or her assessment of the facts presented at trial and his or her own experience and common sense, whether the actions taken were reasonable in response to the threat.

I want to bring one small change to the attention of the hon. members. The use of force is permitted under current legislation only in the defence of a person. Essentially, violent behaviour against the attacker is permitted in the defence. Bill C-26 broadens the defence in order to recognize the fact that in emergency situations, a person might use other forms of behaviour in self-defence such as breaking and entering into a building to seek refuge or even stealing a car in order to flee.

In parallel to the changes to the self-defence provisions, Bill C-26 would replace all the existing provisions for defence of property with one single criterion. It encompasses these essential components and maintains the same level of protection as under the current legislation.

There are three primary conditions to the proposed defence. First, the defender must reasonably perceive that someone else is about to or has just done one of the following things: enter property without being legally entitled to, or take, damage or destroy property. Second, the defender must act for the purpose of preventing or stopping the interference with property. Third, the actions taken must be reasonable in the circumstances.

As with the case of defence of the person, a person can make a reasonable mistake about a threat or interference with property and still have access to the defence. The defender's purpose must be defensive. Defence of the property is not a disguise for revenge. The overarching question for the trier of facts will be whether the actions taken by the defender were reasonable in the circumstances.

It is also imperative to appreciate the defence of property is different from and more complicated than the defence of the person in one important respect. Every person has the right to decide who can touch him or her and how he or she wishes to be touched, and it is very clear when the trigger of non-consensual threat to bodily integrity arises.

Property is very different from the human body in this respect. There can be overlapping interests in the same piece of property which can lead to disputes as to the degree and nature of those interests. Therefore, the defence of property must be guided by the realities of property law in addition to its other basic conditions.

The result as far as the criminal law is concerned is that the defence of property has an additional pre-condition; namely, that the person who claims the defence must have been in peaceable possession of the property at the time of the interference.

The concept of peaceable possession of property is present in the current law and is included in these reforms. This term has been interpreted by our courts to mean that the person must be in actual physical possession of, or in control over, the property at the time of the threat or interference, and that the possession itself must be unlikely to lead to a breach of the peace and is not contested by others. This is the way in which possession must be peaceable; it must not be contested or risk violence or public disorder.

For instance, protesters occupying a government building and criminals who are safeguarding stolen goods are not in peaceable possession of property, and therefore they cannot benefit from the defence if someone else tries to take or enter property.

Law-abiding citizens going about their business, on the other hand, will almost certainly be in peaceable possession of their property. If they reasonably believe that someone is threatening their possession, for instance, a thief is trying to pick their pocket or an intruder is trying to break into their house in the middle of the night, and if they act for the purpose of protecting the property from that threat, they will be excused from criminal responsibility for any actions they take that are reasonable in the circumstances.

We can see why threats to ownership rights do not justify responsive actions that might otherwise be criminal. Ownership and many other legal interests in property are matters of property law, and must be decided by the civil courts if the parties cannot agree among themselves.

Only actual real-time threats to physical possession of property allow a person to respond in a way that would otherwise be criminal. The overarching function of the criminal law is to promote public order and public peace. The law therefore cannot sanction the use of force to protect property in any circumstances other than where a present lawful situation is threatened in a manner such that seeking civil recourse at some later date creates the risk of permanent deprivation of property.

The law allows people to preserve the status quo, not to solve ongoing disputes with violence.

In closing, I invite all hon. members to support this bill. These changes are long awaited and are a reasoned and measured response to very complex legal situations.