:
Thank you for the opportunity to provide some additional information on just a few specific issues that were raised during the testimony of witnesses you heard over the last few weeks.
In relation to the use of technology and the citizen's arrest power, questions have been asked about whether the concept of “finds committing” can apply where technology, such as a closed-circuit TV camera, is used in observing the crime.
As several witnesses before you have noted, the courts make every effort to interpret “finds committing” in a very flexible manner. For instance, the courts have held that it is not required that the arrester see the entire transaction of the crime. It is sufficient to witness enough acts to give rise to a reasonable belief that a crime is in progress. The courts have also held that an arresting person may rely on reasonable inferences drawn from what he or she has seen transpire in his or her presence, and that it's not necessary that the arrester have personal knowledge of all the factors that lead them to conclude that a crime is in progress.
Specifically in relation to the use of technology, court cases have indeed held that observations of crime through closed-circuit television or other types of new technology are equivalent to observations through physical proximity and therefore don't detract from the “finds committing” requirement. Therefore, it appears that it would not be necessary to explicitly refer to technology in the citizen's arrest provisions.
In relation to self-defence, both Professor Stewart and Mr. Russomanno expressed concern about the new self-defence provision that would treat proportionality between the incoming threat and the defensive response as a factor to consider in determining whether the accused should be acquitted. By contrast, the current law treats proportionality between the threat and the response as a necessary criterion for the defence to succeed.
We do not consider this change to be a matter of concern. One reason for this shift is that the proportionality requirement is not actually applied literally in the courts. You've heard Professor Stewart refer to the principle that the accused need not weigh to a nicety the exact measure of defensive force he or she may use.
The courts recognize that in the heat of physical confrontation, people who perceive themselves to be at risk of harm are going to be frightened and agitated. Under these circumstances, the law does not expect a person to engage in detached reflection or to precisely calculate the amount of force that is just right to deflect the attack but no more than that. In other words, the courts recognize that actual proportionality between the threat and the response is too much to expect of a person caught up in a violent confrontation. The requirement of proportionality is, by virtue of the common law, interpreted more flexibly than its definition implies.
In simplifying the law of self-defence, the decision was made to avoid proportionality as a strict requirement, in part because it's not really a strict requirement under the law today. Instead, the ultimate measure of acceptable force would be reasonableness. Reasonableness is preferable, because by its very definition, it is flexible and slightly broader. It also certainly includes proportionality as a matter of logic.
For even greater clarity, proportionality is set out in the list of factors the court can consider, so there is really no possibility of the courts losing sight of its importance.
Logically and practically, something that is disproportionate cannot also be reasonable. For instance, if I shoot someone who is threatening to break my finger, my actions are completely disproportionate, and it is not conceivable that a court or a jury could find such actions to be reasonable in the circumstances.
Professor Stewart also testified before you that self-defence should be limited to responses to unlawful assaults. It is certainly true that the overwhelming majority of self-defence cases involve responses to unlawful attacks. These are precisely the situations that lead people to need to react defensively. It's natural to assume that this should be a limiting condition of self-defence.
However, there are rare circumstances in which a person should be entitled to act defensively against an attack that is not necessarily unlawful. Section 35 of the Criminal Code, one of the four sections on self-defence today, speaks directly to one such situation, namely where the initial instigator of an assault subsequently needs to act defensively because of the response of the other person. I would be pleased to provide further examples of such situations if you have additional questions on that.
The unlawful attack element is also removed because it causes a great deal of difficulty under the current law. This element complicates trials unnecessarily by placing the focus on the early stages of a confrontation. In asking the jury to determine who attacked whom first, the jury must look to which actions constituted the first assault. This in turn requires the jury to determine what the accused believed about the intentions of the other party. It's far preferable to focus attention on the thoughts and actions of the defender at the time when they committed the actions they are charged with.
The removal of this element is not a cause for concern for two reasons. First, the new law of self-defence would include an explicit “defensive purpose” requirement. This means that in any case where a person uses force against someone acting lawfully, they will not have the benefit of self-defence unless they were found to be genuinely acting defensively, and not for another purpose.
The second assurance is located in proposed subsection 34(3), which deals with the most common claims of self-defence against lawful conduct, namely against police action such as arrest. The new law would make it clear that in the case of police action, self-defence is only available if the defender reasonably believes the police are acting unlawfully, such as by using excessive force.
Those are my opening remarks.
Thank you.
:
Ladies, thank you for coming to help us before we move on to the clause-by-clause study, which will be carried out on Thursday. Hearing from the different witnesses has been extremely beneficial. It goes to show that this issue is not simple. Drafting these documents must not have been simple either. I would be surprised if anyone were fundamentally against the goal we hope to achieve with Bill .
Considering what we have heard, I appreciate your comments on certain notions that were not entirely clear to me. I had to briefly discuss them with you this morning. I will set them aside because you have addressed them already.
However, I still have some concerns about the bill in light of some of the witnesses' comments. I am still unsure how my questions can be answered. They mostly pertain to citizen arrests and the fact that a new dimension is being added. I know that it all stems from a single case. We have all said that trying to resolve a legal problem based on a specific case could lead to difficulties. Be that as it may, the two are not mutually exclusive.
Clearly, it is a matter of making the arrest within a reasonable time. As a lawyer, I always struggle a bit with that kind of an issue. I do know that reasonableness is sometimes the most difficult consideration to interpret before the courts. That’s at the heart of the matter. Colleagues in attendance have talked about potential cases when it comes to reasonable time frames. We know that such questions will come up before the courts.
I would like to know whether you, as a Department of Justice expert, feel that it would be worthwhile to focus a bit more on reasonable time frames, to pre-set a maximum limit. Would it be beneficial to set a 48-hour time limit? The idea would be to avoid deficiencies of recollection three, four or five days later.
:
Thank you for the question.
That is a good point. We're certainly aware of the witnesses who have expressed concerns about what would be considered reasonable. We've tried to make it quite clear that it's “reasonable in the circumstances”. If the committee were to consider adding a timeline, it would be very difficult to determine if that outer timeline was reasonable as well, because 24 or 48 hours, as an example, might not be reasonable if you were in a remote location, and it would be excessive if you were in an urban centre where the police could have been contacted within that period of time.
We're quite confident that the courts will interpret “reasonable in the circumstances”, and in those cases that get interpreted by the courts, the law will settle it quite quickly.
There are pros and cons to having any sort of time limit, as opposed to leaving it with “reasonable”. As you've noted, the courts deals with the term “reasonable” all the time in various contexts. I don't think we have any reservations that they won't deal with it appropriately in this context.
:
Let’s take into consideration the three elements of self-defence.
The first element requires the person to believe, on reasonable grounds, that they are under threat and that force must be used. That is both an objective and a subjective element. The subjective aspect—what the person thinks—is considered first. Then, the objective analysis is done, whereby it is determined if the act was reasonable.
The second element is exclusively subjective. The only thing considered is the person’s intention. It must be established that the person intended to defend themselves, rather than continue to commit the crime in progress.
The third element is purely objective, as the two other elements are used to determine the third. It must be decided what kind of reasonable grounds the person had regarding the threat and what that person’s subjective intention was. All that is taken into account when deciding whether the person acted reasonably.
:
Thank you. Thank you to both of you for bringing some clarity, hopefully, here today.
I was particularly interested in your comments, Mr. Klineberg, on “finds committing” because that was an area that was causing some of the witnesses, and I think some of us, some concern in understanding it. I am not concerned about the use of the term “reasonableness” because the courts do deal with this every day, and we have such a history of jurisprudence in that area that I think it's pretty clear where we're going there.
You mentioned, in dealing with “finds committing”, that the case law talked about reasonable belief and reasonable inference. I was wondering if you would just comment on how that is a different test from reasonable and probable grounds, which is something law enforcement deals with all the time but is not in this legislation, in those words at least.
:
Thank you, Chair. I am new to this committee; I am substituting for Irwin Cotler, and I have big shoes to fill here, especially since I am not a lawyer, so you'll have to excuse me if my questions are more simple.
It is an intriguing subject, I must say, and your presentations were superb and could easily be understood by a non-lawyer, so I congratulate you for that.
When we're talking about subjective beliefs that you are about to be attacked.... I believe that is included in the bill, that if someone feels they are under a threat and they react, they may not be found guilty under this law. Is that correct?
Ms. Joanne Klineberg: Yes.
Mr. Francis Scarpaleggia: It reminded me of a case in New York, I think it was in the 1970s or 1980s, of a fellow on a subway, an innocent fellow, a bit of a nervous character, but perhaps he had the right to be nervous in the circumstances. He had a gun, and I think four or five people, gang members, or whatever they were, got on the subway train and they intimidated him quite seriously; he panicked and shot them. In fact, I don't know if he killed any of them, but some of them were paralyzed for life and so on. If I recall correctly, in the subsequent investigation, it turned out that these four or five guys were actually quite bad guys and they had been convicted for serious violent crimes and so on.
In the context of a law like , how would he be treated? I don't recall if he was found guilty of overreacting or what the conclusion was, but I think you are familiar with this case. How would he have been treated by the law in the context of ?
:
It would depend on the evidence that was available to be admitted during the trial.
But certainly if one were to apply what's proposed to be the new law of self-defence here, the first question would be, did he have a reasonable perception that he was about to be attacked? That would be the first question. So his subjective beliefs there obviously are the most relevant place where we start.
The next question is really whether a reasonable person, with much the same background as he has, in that same situation would have had the same sense that an attack was coming.
The second element of self-defence would be, did he act for a defensive purpose as opposed to another purpose? Was he seeking revenge or was he seeking merely to protect himself? That would be the relevant question.
There is a third issue the court would have to examine in that case: would the reasonable person say that the steps he took in these circumstances, given everything else we know—given his beliefs, his fears, and all the other factors—have been reasonable? Fortunately, we get to leave those decisions for the people who hear the evidence.
:
You've hit on one of the most interesting and difficult aspects of self-defence, which is the degree to which the personal characteristics of the accused can be attributed to the reasonable person when we're looking at the reasonableness of the accused's actions.
Many of the accused's personal characteristics can be attributed to the reasonable person, but there's a limit. If we attribute every characteristic of our accused to the reasonable person, we've lost the benefit of the reasonable person test because we've made the reasonable person our accused.
The courts deal with where that line is on a continual basis. Certainly if a person had experienced violent attacks throughout their childhood, or if they had been victimized many times and that circumstance affected the way they approached situations or the way they perceived situations, to a degree those would be factors that could be attributed to the reasonable person so that we could better judge that person's actions and perceptions and be fair to them.
:
Thank you, Ms. Klineberg. That was an excellent presentation and a good response to the evidence you heard.
I have to say I agree with you in relation to the position of the department as not being prescriptive in relation to a reasonable time and other things found throughout, because I think certainly the judges have interpreted statutes for years, and we have hundreds of years of case law in many courts across the world that have interpreted these and have good solid law to back them up.
Also, I appreciate the confirmation relating to technology and the use of technology. I think that was good, and good for the committee to hear that.
I'm interested in one particular statement you made, which is that proportionality is not applied literally in the courts. I would like you to expand on that if you could, please.
:
If you open up a dictionary and look at the definition of proportionality, it really speaks to a direct and limited relationship between two separate things. This is where these two things are proportional to each other. It doesn't allow for plus or minus five degrees or ten degrees. That's where the courts have said that proportionality between the threat you're trying to avoid and the harm you cause is obviously a guiding principle. We don't want to allow people to shoot others just because they're at risk of having a finger broken.
So there's no question that it's extremely important. This goes back to a decision from the House of Lords called Palmer, which I think dates from the early 1970s, that has driven the rest of the case law in this area throughout the common law world. It's almost an error of law for the court not to instruct the jury to apply proportionality, not in a rigid manner but to apply it in a flexible, tolerant manner.
In other words, if someone in a situation of heightened passion, where they're fearful for their lives, inflicts more harm than was absolutely necessary, you should still consider whether what they did was reasonable based on their fear, based on the heightened tension of the situation, based on the crisis mode they were in. You should give them that latitude. And the jury should not be told to find exactly how much force was proportional to the threat and no more. They're really told to come at it with much more generosity to the situation that the accused was in.
:
Good morning. My question is for Ms. Klineberg or Ms. Kane.
In the brief the Barreau du Québec submitted when it testified, there are important elements regarding citizen arrests that leap out at me. The brief states the following:
In addition, the fact that a citizen's arrest must be made "within a reasonable time" after the commission of the alleged offence leaves the way open for a possible abuse of power. Any arrest includes elements of unforeseeability arising from the use of the force [...]
The Barreau provides examples and says that, in many cases, although police officers are well trained and very skilled, things can go wrong during an arrest, even when the people involved are not criminals.
I would like to know if you have considered minimizing risks in citizen arrests. That remains a considerable power. It’s a matter of respecting the law and the rights of the arrested person.
:
Thank you for the question.
I think you're drawing a comparison, perhaps between the police, who are very well trained, and private security guards, who would be effecting a number of citizen's arrests. We can't necessarily expect the private citizen to be familiar with what an arrest is and so on.
As I mentioned, we are going to be providing some public education materials to advise the public that this is not meant to encourage them to take the law into their own hands; their first resort should always be to the police.
I don't think we would have concerns about private security companies not being well trained. Certainly in our meetings with them, when we were looking at options for law reform, and in their testimony before the committee, they did indicate how very frequently they are engaged in this activity.
It's a very sophisticated and well-trained organization. Because so many businesses do rely on private security guards, they would not be wanting them to engage in conduct that was abusive. And they are monitored and regulated in other ways than through the Criminal Code.
I don't think we have concerns that there will be abuses because of these reforms that would be any different from what might occur now. In fact, our hope would be that because the law will be changed and there will be more public awareness of this, it will be the opposite. There will be more rigour in terms of avoiding any potential abuse.
:
As to how this would arise, potentially, in the department store context, perhaps a person is observed by security officers—whether by a closed-circuit television or face to face—while stealing merchandise. They would see the person leave the store and would effect the arrest at that time. They could detain the person, but there's an obligation for them to turn the person over to police as soon as possible.
What we have been advised happens in the ordinary course of events is that they would then contact the police by telephone, indicating that they have a person in custody, so to speak. Sometimes, if it's a less serious offence, the police give them a number over the phone. They get the person's details, their contact information and so on, and then they release that person immediately. The person would then receive at home a notice to appear or a summons to appear in court.
So it wouldn't be a situation where the thief would be locked up in jail or detained for a prolonged period of time. Otherwise, the police would attend, and the police would take over at that point in time and would remove the person if the person were disruptive in any way or potentially causing threats to other people in the vicinity.
Is that getting at the heart of your question?
:
That would be a possibility: we can't say with certainty whether the wrong person is arrested. Obviously, there's embarrassment there, and there could be other damages. It's possible that the person may want to pursue civil charges. That's also why, in the context of citizen's arrest, we've added the “reasonable” period of time requirement. The farther away you get from the “finds committing” to the arresting at some point in the future, the greater the risk is that the wrong person will be identified.
It's part of the balancing act between what is reasonable and whether extending the time beyond “finds committing”, which is in the very act of the offence being committed, to some reasonable point past that, creates those risks. For the average shop owner, they may be less reluctant to arrest a day later than would a private security guard, who may have more confidence that they've identified the right person.
We're not foreclosing a person's civil remedies; if they are entitled to pursue those remedies, they will.
Thank you for allowing me to ask a question.
Thank you for coming today.
There was an inference from your comments with regard to excessive force by the police. From my 20 years of experience as a police officer, I can tell you that it's normally not what occurs, but it does happen from time to time. But here's what I'm getting at. You made an inference that if a police officer is arresting a person, and that person deems the arrest to be excessive in terms of arrest, that person may believe that excessive force is being used and could potentially resist.
I would hope that there was no reference to that person committing a criminal act of resisting arrest. What most police officers will do if a person resists.... In my case, then, I up the ante: if you're going to resist, I'm going to put a little more pressure on you.
I come from a police day when there were no tasers and there was no pepper spray; it was just you and me and let's see what happens—
Voices: Oh, oh!
Mr. David Wilks: And I didn't lose too often.
The fact of the matter is that if we are going to encourage people to resist the police because the person believes the arrest is not proper, you potentially could put someone in imminent harm.
I’m not sure I understood your answer to my colleague. Would it be inappropriate to amend the provision so that is reads as follows: “they make the arrest at the first opportunity, within a reasonable time”? I think that could be a good way to take into account the valid examples we have been provided with. As urbanites, we tend to forget that, in rural areas, the police is not very close. Therefore, the reasonable time frame may vary from one place to the next.
I understood the arguments you put forward when answering my earlier questions. However, the person could still act within a reasonable time without acting at the first opportunity. I don’t know if you follow my reasoning. In such a context, I don’t think things should be handled like that. Normally, the arrest is made right away, but in this case, the time period is extended. I think that people realize that may be necessary in some cases. That’s not an issue. However, it would be prudent and reasonable for the legislator to stipulate that the arrest should be made at the first opportunity. It is not a matter of providing a free pass.
:
They make the arrest at the first opportunity within a reasonable...and stop there. If you read the rest, I don't think it has that implication: If you read it as I would see it read, it would be that they make the arrest at the first opportunity within a reasonable...and then we continue:
reasonable time after the offence is committed and they believe on reasonable grounds that it is not feasible in the circumstances for a peace officer to make the arrest.
We are past (a), so we are obviously in a second type of a situation.
It would be limiting. It would be sending a message that if you're not able to do it right now, the new law permits an extension. You have an extended period of another situation that can happen, as long as you're in a reasonable time and it is at the first opportunity.
You don't say, I'll go get two of my friends and we'll do the arrest because I don't feel comfortable doing it on my own, or something like that. It's really sending...you want to do it.
In the literature that you're going to prepare for people who could be interested in this new law, stress again that first we don't want to let citizens loose and tell them to please make a citizen's arrest. Second, if you're going to do it later than the immediate moment that you spotted the contravention, do it in a reasonable time, but do it at the first occasion. Don't start thinking, well, maybe I'm not ready right now, maybe I'll wait for a bit, until later on.
That's what I'm aiming at by saying that.
No comments? Excellent. Perfect. I'm so convincing. I love it.
Voices: Oh, oh!
[Translation]
Ms. Françoise Boivin: Would you object to something being added? Do you think that adding something would be a fundamental change?
Currently, the bill suggests that paragraph 34(2)(f) be added. It reads as follows:
(f) the nature, duration and history of any relationship between the parties to the incident, including any prior use or threat of force and the nature of that force or threat;
What would you say to adding subparagraph 34(2)(f)(i), which would talk about “the person’s ability to evaluate the degree of force in the circumstances”?
I think we will bring this part to an end. I want to thank the witnesses, and I want to thank the opposition for allowing Mr. Wilks to ask questions.
Just so that everybody's up to speed, on Thursday we will go to clause-by-clause on Bill . If we have time, which we may, we'll have the report on organized crime back and we can try....
Oh, the clerk says you'll get it as soon as we all get back. He has the new version in his pocket.
Mr. Goguen.