Mr. Speaker, before question period I had set out some arguments that reflected the concerns already raised by some hon. members that this bill may not be a good start in terms of the intent. There may be good reasons that this bill should have been referred to committee before second reading to allow some expert testimony from witnesses to assist in making whatever changes they felt necessary before it came to the House for debate.
I pulled up the minister's speech from Friday on this matter, and it strikes me that this has been going around for a long time. In fact, we are talking about an incident that took place in 2009. Mr. Chen was acquitted on February 17, 2011. It has taken a very long time for this bill to be received. I think it was only on February 17 that the bill was tabled at first reading, and here we are in March.
I wonder why the minister would not take the opportunity for a bill that includes, in the opinions of a number of hon. members, potentially some confusing areas that may be very problematic. The factors that would determine whether or not there was a reasonable amount of time, a reasonable expectation, et cetera, are very long and when these incidents occur on a snap basis, the public at large will not be familiar with them. This bill may encourage people to feel empowered that they can undertake a citizen's arrest without knowing that they may very well still be charged. Ultimately, it would be up to the courts to determine whether or not they met the test under the bill. This is not a black and white situation.
Given that is the case, the only explanation I can think for why the minister did not refer the bill directly to committee was that the justice committee right now, as usual, is bogged down with several pieces of legislation. Considering the average time it would take to discharge those pieces of legislation, it is likely that this particular bill would not come back to the House after committee until sometime in the fall. We may not see this bill go to the Senate until the Christmas break, and then the Senate will deal with it at some point.
That is an awfully long time, even though it still presumes that the bill would go through the process very expeditiously. However, I do not believe that would be the case. I much suspect there will be substantial amendments sought at committee, first of all, to delete a number of clauses and, second, to add others, which may be challenged as beyond the scope or intent of the bill. There may be other problems with it.
As much as I hate to admit it, this particular case has been used as a bit of a political football.
I was reminded by another member that the member for introduced a private member's bill on June 16, 2010, after Mr. Chen was acquitted and when the government still had not taken action.
On September 27, 2009, the minister of immigration actually visited Chinatown for a photo op and made an empty promise to raise the issue of amending the Criminal Code with the government.
On June 16, 2010, after nine months of inaction, the member for introduced his private member's bill.
On October 10, 2010, Mr. Chen was acquitted. I was in error when I said it was February 2010; it was actually October 2010.
On November 4, 2010, the member for held a press conference calling on the government to adopt his bill, Bill .
On January 21, 2011, the met with Mr. Chen and promised legislation would be introduced soon.
On February 15, the government put a notice on the notice paper by the that there would be a bill. It was in fact tabled in February and debated in the House for the first time on Friday.
This was an important case of clarification necessary in the Criminal Code for Mr. Chen and for other citizens who are victims of robbery, but there are certain elements that have to be taken in the law.
For most Canadians, it is a slam dunk. They are going to protect their property even if they have to tackle the guy, whoever he might be, and hold him until the police come. They do not think about whether or not they are using unreasonable force. If they happen to see this person the next day and recognize him they will tackle him. They are not sure whether that is a reasonable period of time.
That is precisely what the bill deals with, the various factors on how the courts are going to be asked to interpret our intent for this legislation. From listening to a couple of the speakers, I think the conclusion is that it is going to add confusion. Let me give some examples.
When people think about the amendments they will understand that in a heated moment, in a snap decision they might not have considered some of the following.
First, a person is not guilty of an offence if he or she believes on reasonable grounds that force is being used against him or her, or another person, or that the threat of force is being made against him or her by another person, if the act that constitutes the offence is committed for the purpose of defending or protecting himself or herself from another person, and the act committed is reasonable in the circumstances.
That is where the problem starts. What constitutes being reasonable in the circumstances to use force to arrest someone? In determining whether the act committed is reasonable in the circumstances, the bill suggests that the court may consider certain things. It is not that the individual should consider them, but I doubt that the public at large would be able to deal with it.
The court is going to have to consider the nature of the force or the threat being used and the extent to which the force was imminent or whether there were other means available to respond to the potential use of force. For example, were there any options. The court will have to consider the person's role and intent in the incident, what he or she was doing, was the person a party to it at some point in some way. The court will have to consider whether the party to the incident used or threatened to use a weapon. Sometimes it is unknown and people are not sure what constitutes a weapon.
The court will have to consider the size, age and gender of the parties to the incident. I am not sure many people would even think about that. I suppose if the individual is a very large person and the other person is intimidated by that individual, it may have some influence on the person's judgment about whether or not the person is going to attempt to arrest the individual. The nature, duration and history of any relationship between the parties becomes relevant, as does the nature and proportionality of the person's response to the threat of use of force, and whether the act committed was in response to the use of threat or force the person knew was lawful. That is part of it.
There is another whole part that goes into the whole aspect of defence of property, but there is a lot of parallel of what constitutes a defence of property. The point, without reading the various provisions, is that the bill does not propose a change in the Criminal Code, which is going to make a defence of property by apprehending or arresting someone because it is one's property.
I have a feeling that Canadians may not be comfortable understanding that we are balancing off the interests of defending and protecting our property and civil liberties. There are certain things that cannot be done to other people. Where is that balance?
When I looked at the speech the justice minister gave on Friday, he used terminology to say that the bill was balanced and necessary, but the speeches so far do not concur. The commentary so far is that although the amendments to sections 34 through 42 in the Criminal Code would cause some confusion, there seems to be some support for the amendments to section 495 and section 494.
Currently section 495 of the Criminal Code says that a peace officer may arrest without warrant a person who has committed an indictable offence or who, on reasonable grounds, the peace officer believes has committed or is about to commit an indictable offence; a person whom the peace officer finds committing a criminal offence; as well as any person whom the peace officer believes, on reasonable grounds, has committed or is about to commit an indictable offence.
What the courts have told us is that for an arrest to be valid on the basis of reasonable grounds, the grounds must be objectively established, in the sense that a reasonable person standing in the shoes of the officer would believe that there are reasonable and probable grounds to make the arrest.
Section 494 of the Criminal Code deals with a private citizen making an arrest. Currently section 494 of the code says that a private citizen may arrest those found committing indictable offences, those being pursued by others who have the authority to arrest, or those committing criminal offences in relation to property.
It is important to note, and the minister agrees, that there is a legal duty under section 494 to arrest and deliver the person to the police forthwith. This has been interpreted by the courts to mean as soon as reasonably practical under all the circumstances.
All of a sudden, “reasonable” and “interpretation” become a big part of the bill.
The bill would expand section 494(2) to permit the property owner or a person authorized by the property owner to arrest a person if he or she finds that the person who committed a criminal offence on or in relation to his or her property is just at the time when the offence is being committed or also within a reasonable time after the offence is committed.
Here again is the concept of a reasonable time and, all of a sudden, it is subject to interpretation, so caution has to be taken.
I think I have made my point with regard to the changes being made. I would like to briefly comment on a couple of other points.
We have had two private members' bills on this issue already. It is clear that the government has not taken this seriously. In fact, it has politicized it by having photo ops and saying that it is going to do things, which it did not do for almost a year. Then, when we look at the calendar and what is going on at the justice committee, it is very clear that the bill is a long time away from ever becoming law, if at all.
I also note that the very last clause of the bill says that the bill will come into force when it gets fixed by an order of Governor in Council.
After the legislation goes through the House and the Senate and receives royal assent, the provinces have to get involved. It becomes even more problematic because the provincial policing authorities are probably the ones which are going to have to enforce this law. The government has not done its homework. It should have been done already. I do not believe that the government is serious about this. I hope it does not stand in the way of getting the bill through the justice committee expeditiously.
Mr. Speaker, I am pleased to speak to Bill , which came to Parliament rather oddly. The went to Toronto to make an announcement about a man who had been arrested. This government is known for its piecemeal legislation. In other words, if something happens in Toronto, Winnipeg or Vancouver, the government suddenly jumps on it and introduces a bill to amend the Criminal Code.
The problem is that they go about it all wrong. That is the first problem. They amend sections of the Criminal Code. If it is not parole, then it is the parole act, at which point they amend sections on probation, release, etc. They jump from pillar to post and Bill is no different. We are going to explain the problem to those watching us. It happens. It concerns section 494 of the Criminal Code, which states:
||(a) the owner or a person in lawful possession of property, or
||(b) a person authorized by the owner or by a person in lawful possession of property,
|| may arrest without warrant a person whom he finds committing a criminal offence on or in relation to that property.
This where the problem begins.
Allow me to explain. Let us just say you own a home or a convenience store, as in the case that led to the proposed amendment now before us. The convenience store owner was robbed. The owner saw the robber some time later and, when he recognized the robber, arrested him. The problem is he does not have the right to do that. It was the poor store owner, Mr. Chen, from Toronto, who was arrested, brought to court, charged with illegal arrest and sentenced. It makes no sense; we know that. However, the legislation says, “may arrest without warrant a person whom he finds committing a criminal offence on or in relation to that property”, in other words, the property he legitimately owns or the property regarding which he is authorized by the owner.
Therefore, you can arrest someone who comes to steal from your convenience store. If you are the clerk at a convenience store and a thief tries to take your money from the cash register, you can arrest him because the law says that you can arrest someone who is “committing a criminal offence on or in relation to that property”. It is not a problem for one person to arrest another who is committing an offence: the former will never be charged. The problem arises, as in the case of the poor man from Toronto, when you arrest someone for a crime committed earlier. The police were taking so long to arrive that he thought it would be quicker for him to arrest the thief. Unfortunately for Mr. Chen, the thief was acquitted because it was an unlawful arrest, and the poor man found himself being charged with unlawful arrest.
Up to this point, it is a good idea to amend section 494 because people are unhappy, with good cause, as they feel that they cannot even arrest someone who has comes to rob them at home.
But a subtle point is being introduced in Bill and the proposed new subsection 494(2):
|| The owner or a person in lawful possession of property, or a person authorized by the owner or by a person in lawful possession of property, may arrest a person without a warrant if they find them committing a criminal offence on or in relation to that property and...
This is where the problem arises.
||(a) they make the arrest at that time;
It is clear that if someone is robbing a convenience store, they can be arrested. That is not a problem. However, this is what they want us to pass into law:
||(b) they make the arrest within a 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.
That is going a bit far. This means that the owner of a convenience store, to use the same example, can arrest someone who steals money from the register. This happens often. I had many clients who went into a convenience store to steal. Convenience stores have a strange habit of always putting cases of beer on sale near the door, where anyone can see that a big case of 24 costs $24.92 instead of the regular price. Someone opens the door while another person steals the case of beer. You could say that the convenience store owners are asking for trouble.
If you see someone in the process of stealing, you can arrest them, no problem. However, the bill adds the following: “...they make the arrest within a reasonable time after the offence is committed and they believe on reasonable grounds....” Those two points are important. Not only do they have to make the arrest within a reasonable time, but they have to believe that the police or a peace officer would not be able to get there. That is asking a lot of someone.
The Bloc Québécois is in favour of sending this bill to be studied in committee. We think that section 494 of the Criminal Code should be amended. This poor man arrested someone, knowing that this individual had come to rob him. That happens often. To come back to my example, there is a sale: 24 beers for $12.98. That will surely attract thieves. One of the thieves opens the door of the convenience store and the other grabs the case of beer. The owner of the store did not see him steal it, but after two minutes he realizes that he is missing a case of beer. He opens the door, looks outside and sees someone leaving with a case of beer. Under the current section 494, he could not arrest the individual because he did not catch him in the act. That is what happened in Toronto, but the individual decided that he would still arrest the thief and then ended up in trouble.
We believe that a solution can be found so that this section allows an individual to arrest someone. Clearly, if the owner does not immediately arrest someone who is stealing a case of beer, and if the police are not around the corner, it is over. Those are the two instances where something can be done.
However, we have issues with the bill. If it were only about amending section 494, all of the parties would have passed Bill C-60 to rectify that particular issue quickly. It is a Conservative thing. They are using Bill to introduce a series of amendments to sections 34 through 42 of the Criminal Code, which have to do with self-defence. And they are way out in left field on this.
We cannot support them in that. There are a number of amendments proposed for sections 34 through 42. It is worth reading some of them. Anyone who has practised criminal law, for the defence or the Crown, anyone who has argued a case will know what this means.
|| Every one who is unlawfully assaulted without having provoked the assault is justified in repelling force by force if the force he uses is not intended to cause death or grievous bodily harm and is no more than is necessary to enable him to defend himself.
Subsection 34(1) is very easy to understand. If you are attacked, you have the right to defend yourself. But if someone punches you and you use a baseball bat or pool cue to defend yourself, in a bar for example, and you cause grievous bodily harm or even death, that is clearly not a case of self-defence. Someone who is attacked on the side of the road has the right to defend himself. Everyone has the right to defend himself against a violent attack, as long as he does not intend to cause death or grievous bodily harm.
They are trying to force us to accept certain things. The bill would amend section 34 with a new subsection 34(1), which reads:
|| A person is not guilty of an offence if
||(a) they believe on reasonable grounds that force is being used against them or another person or that a threat of force is being made against them or another person;
And there is more. Listen to this:
||(b) the act that constitutes the offence is committed for the purpose of defending or protecting themselves or the other person from that use or threat of force; and
|| (c) the act committed is reasonable in the circumstances.
They dare to add another amendment:
|| (2) In determining whether the act committed is reasonable in the circumstances, the court may consider, among other factors,
||(a) the nature of the force or threat;
||(b) the extent to which the use of force was imminent and whether there were other means available to respond to the potential use of force;
||(c) the person’s role in the incident;
||(d) whether any party to the incident used or threatened to use a weapon;
|| (e) the size, age and gender of the parties to the incident;
I could go on. What they would have us swallow makes no sense. It is clear we will never, ever accept that.
They want to put every ruling from the Supreme Court, the Court of Appeal for Ontario, the Quebec Court of Appeal and the Court of Appeal for British Columbia that ever defined self-defence into the Criminal Code.
With all due respect to the Conservatives, I must say that the concept of self-defence has evolved over time. The definition of self-defence is no longer as open as we thought. We have taken into account the force necessary to repel the attack if, in so doing, the person did not intend to cause death or serious bodily harm. If that is not clear, then it is up to the court to decide. It is not up to us to define the concept of self-defence for the court.
This would also be added:
||(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;
||(g) the nature and proportionality of the person’s response to the use or threat of force;
It does not make sense to try to define self-defence in the Criminal Code. We cannot accept that. The courts have given rulings and when people were dissatisfied, they filed an appeal. If they were still dissatisfied, the case went before the Supreme Court, which established, once and for all, the definition of self-defence and how self-defence can be invoked by defendants.
We cannot accept all of this. There are examples of legitimate self-defence. Here is one such example. One of my clients goes into a convenience store—this has happened a few times—except he does not know that this is the fifth time the store has been robbed. Nor does my client know that the store owner has a 12-gauge. For the benefit of my Conservative friends, a 12-gauge is a weapon, a shotgun. So he has a 12-gauge shotgun under the counter. The owner tells himself that this is the last time someone is going to rob his store. My client enters the store and, yes, he goes about assaulting the store owner to steal from the cash register. I am not saying that my client is a charming man or that he should win a Governor General's award. That is not what I am saying. I am saying that my client goes into a convenience store and robs it. He has no weapon. He leans over to reach into the cash register to take the money. What does the store owner do? He pulls out the 12-gauge shotgun and shoots him. He does not shoot him in the head. He does not shoot him in the heart. He shoots him in the legs to make sure this guy remembers him. He does not want to kill the robber. That is what he told the court.
With all due respect, I do not think that this qualifies as self-defence. The court agreed. I defended the accused. The owner came and said all this before the court. Clearly the judge said that his behaviour did not constitute self-defence. What is self-defence? I repeat: self-defence is “repelling force by force if the force he uses is not intended to cause death or grievous bodily harm and is no more than is necessary to enable him to defend himself”. When someone shoots another person in the leg with a 12-gauge shotgun, the courts assume that the person did so with the intent to cause grievous bodily harm. In this example, the man was convicted.
Bill is well-intentioned in aiming to solve the problem of defence of property. However, a distinction must be made between the defence of property and self-defence. Self-defence applies when an individual is the victim of a personal attack. Motorist A is driving down the highway—and this has happened on more than one occasion—and is cut off by another motorist, motorist B. Motorist A does not like this. He pursues the other vehicle and cuts the driver off. Motorist B parks his vehicle and hits motorist A with a baseball bat. This is not self-defence.
What was well-intentioned risks going nowhere because clearly we are not going to agree to amend sections 34 to 42 on self-defence. There is too much in there. The courts have ruled on the definition of self-defence, on the defence of self-defence. We have to let the courts do their job.
However, and I will end on this point, the idea of amending section 494 of the Criminal Code is well-intentioned and we can work on amending this section so that it does what society is asking for.
Mr. Speaker, a number of us have been waiting for Bill to come forward, at least we were hoping it would, although, as my remarks may show, it was never clear that the self-defence provisions of the Criminal Code, which the bill would purport to fix, were really broken. However, it does provide for a very interesting debate, at least for those of us who are interested in some of the micro details of the Criminal Code, especially as they relate to the common law.
As colleagues have already pointed out, on one level the bill was drafted to address a situation that arose in a Toronto Criminal Code prosecution. It is one that I got involved with on the street, as a number of publicly elected people did at the time because of the nature of the facts. I can say that the proposed new wording for subsection 494(2) is a reasonable attempt to address the fact sequence in that case. I am not sure that an amendment actually is needed, but I respect the intention of that portion of the bill.
The rest of the bill quite surprisingly purports to codify the common law provisions of self-defence and put them in the Criminal Code. I was not aware that these provisions were broken. I always subscribe to the adage that if something is not broken, we should not try to fix it. I am getting the impression that is what is going on with the other aspects of Bill .
Let us go back to the first set of issues involving subsection 494(2) and the unfortunate events surrounding the shoplifting and attempted shoplifting at the Lucky Moose supermarket. That is a real business in the heart of downtown Toronto and is owned by a very fine gentleman, a proprietor and small businessman who is very hard working, as are his employees.
He was confronted by a shoplifter. The particular shoplifter is known to almost everyone who works there. He is a repeat offender and has a record longer than my arm. He is so notorious as a thief that his picture has been placed throughout the neighbourhood on lamp posts. His modus operandi involves going into an area with his bicycle, parking it, stealing something, getting on the bike and whisking away. As I say, he has a very lengthy record. He is before the courts now and probably will be for the foreseeable future, so there is no point in my saying much more than that.
The store involved is one that puts merchandise out front. Sometimes it is vegetables, fruit or flowers. Canadians in large cities will be very familiar with that format of a grocery store or supermarket.
What happened on that particular day was that the thief showed up once, stole merchandise, left in the way I described on the bike, and showed up again later. At that point he was recognized and the shop owner and his employees took steps to apprehend the guy, knowing that he had already stolen once and was preparing to do it again. The guy was apprehended. The outcome was shocking and really quite sad to me and many other people in that the shop owner was charged.
A few weeks ago the court case ended with the charges being dropped. In the meantime, the unfortunate proprietor had to undertake a defence. He had many people in the community supporting him. He had a good legal team. The sad thing was that this law-abiding citizen suddenly, in the course of defending his business, became an accused criminal.
This bothered me a lot at the time. Because it was before the courts there was not a whole lot any of us could do. We just hoped for fair treatment in the courts. That eventually happened, but at what cost to this law-abiding businessman in our community?
In my view, the whole story from start to finish should have been about that businessman, Mr. Chen. It should have been about him and his business and its place in our community, but for reasons I really cannot explain and none of us could, it was not about that. The police changed the story. The police turned him into an alleged criminal and it became a story about the powers of arrest by police versus the citizen. That was just wrong.
I do not know what part of the system went wrong, but I am not alone in saying that whatever went on in the days that followed that event, it did not happen properly. In my view, it was not even in accordance with the law as I read it. I think the police and the prosecutors made a mistake in forcing Mr. Chen to defend himself. I can only say that the police and the prosecutors were doing more to defend their own powers of arrest than they were to protect Mr. Chen and his business.
I say that sadly because in Toronto we have a very good police force. Its motto is “To Serve and Protect”, but one can only ask how much did it serve and protect Mr. Chen in this case. The police turned him into the alleged criminal and it took him a year to clear his name.
Was there a need to change the law? I do not think there was, but I can see the argument that there was. It is quite a normal reaction to say that if the existing state of the law is interpreted by the police as this, we have to change the law. I understand where that is coming from. I am just not sure that the police had the law correctly.
I did a bit of research, and needless to say I had a bit of help doing it. In looking at the law, of course it is related to the common law in that the powers of arrest that citizens have are buried in the common law. They exist. They are real. They are not a fiction. The Criminal Code does not say citizens have the power of arrest. The common law says that citizens have the power of arrest. In fact, citizens had an obligation to effect an arrest in the old days and if they did not make the arrest, they could be fined. Even though we do not fine people now for not making citizens' arrests, the powers are still there and they are referred to, at least indirectly, in our Criminal Code the way it has been worded up to now, and members should keep in mind our Criminal Code is over 100 years old.
In common law, the power of a private person to arrest is limited to treason or a felony that has actually been committed or attempted, or where a breach of the peace has been actually committed or is apprehended, and larceny, theft. Stealing is a felony in common law.
There was no power to arrest for a simple misdemeanour where there was no breach of the peace and where it was not necessary to arrest the offender to prevent the renewal of the act. Members should please recall, as I go through this, that the thief in the real life situation showed up again, apparently to steal again, with his bike, the same modus operandi, the same routine. He showed up again and that is, I repeat, a renewal.
For people who are interested in history, in 1892, the old system of misdemeanour and felony was wiped out and replaced in our Criminal Code and in the British system. However, abolishing the distinction between felonies and misdemeanours at that time had no effect on the principles of arrest without warrant in the common law, at least for breach of the peace.
Section 8 of the current Criminal Code permits all of the common law defences to be used. Citizens should take some comfort in knowing that all of the common law defences that we have had for hundreds of years, going back to the Magna Carta, still exist in the Criminal Code unless they have been explicitly removed, and case law across the country has confirmed that, similar to other jurisdictions.
I will read the current state of this as best I could research it. In the case of a breach of the peace, there is a power to arrest, without warrant, on the part of a citizen where:
|| (1) a breach of the peace is committed in the presence of the person making the arrest; or
|| (2) the arrestor reasonably believes that such a breach will be committed in the immediate future by the person arrested although he has not yet committed any breach; or
|| (3) where a breach has been committed and it is reasonably believed that a renewal of it is threatened.
I just referred to my research here, that is the case of R. v. Howell, which was a British Queen's Bench case.
However, the court dare held that there must be an act done or threatened to be done that either actually harms a person or, in his presence, his property.
In the Lucky Moose supermarket case, there was property and a threatened new breach of the peace, which was the taking, the theft, the larceny in relation to the property of Mr. Chen. That particular line of reasoning does not appear to have shone through in this particular court case but I believe it should have. I believe the prosecutor should have known that. I believe the police should have been told that. Mr. Chen should not have been charged.
In any event, he was charged but, fortunately, the judge who presided, in the end, made the right decision or decisions and we in Toronto have all gone on with our lives.
However, I found two things regrettable. One was the lack of appreciation of the prosecutors and the police of these of common law provisions. If that is the state of the art and our police and prosecutors do not know these common law defences and common law provisions that citizens have been basing their lives on here in our jurisdiction and under our Constitution for over a century, then maybe it is time to rewrite the code. We will write it down for them so they can read something and be satisfied with it.
However, I do regret that all of this transpired when I believe Mr. Chen had a very clear legal case that should have been made. I could not help but think that the police were trying to make the point that arresting people was their job, not the citizen's job. Yes, it is their job to do law enforcement, and they do a very good job of it across the country, but they should never place the citizen in a secondary or second-class role. Citizens, for whom the police work, should always be number one. This particular shop owner, Mr. Chen, up to that point in time, had not done anything wrong. He was just defending his own business. I do not know how the police did not see that. I hope the police understand my words as not being critical of their ongoing work on behalf of all of our communities, but their work in connection with prosecutors ought to be well based on the law.
This legislation seems to be a fix for the section of the Criminal Code that pertains to the facts of this case. Even though I do not feel that it was necessary, I accept that we can amend the code for that.
Accompanying this statutory amendment is a whole rewrite and codification of the law of self-defence under the Criminal Code. As I said earlier, if it is not broken, why are we trying to fix it?
I read one of the sections and it bothered me a bit. I will read the relevant words:
|| A person is not guilty of an offence if
|| (a) they either believe on reasonable grounds that they are in peaceable possession of property or are acting under the authority of [some who is]...;
||(b) they believe on reasonable grounds that another person...is about to enter...the property...;
||(c) the act...is...for the purpose of...preventing the other person from entering the property...;
||(d) the act committed is reasonable in the circumstances.
There are many private properties In a big city. I cannot imagine all of the complications that will arise when we codify this and try to figure out what is reasonable and what is not, how much force someone is allowed to use before somebody steps off the public sidewalk, where the property line is, is it an individual or a corporation that owns the property, is it a condominium corporation, is it a landlord or is it rented property.
The government has not explained why it feels the need to rework and codify these common law provisions in the Criminal Code. The danger in doing it are that it will codify a part of the common law but not all of it or it will go too far, or it will not think of every fact situation in having codified the part of the common law that seems to be working reasonably well generally for us. By codifying it, the government is preordaining and structuring a result involving a sequence of facts that nobody ever thought of. We would then have to amend the code again because nobody ever thought of that particular set of circumstances.
I will be looking for answers from the government. It really has not stated why it felt it was necessary to write these new sections, to codify the common law self-defence provisions in the Criminal Code.
The minister said that the list of factors codifies well-recognized features of many self-defence situations and will help guide judges and juries in applying the new law. Is it new law or is it just old law codified? The government should tell us what needs to be fixed before we walk down this road of codifying something that has worked pretty well for us under our Constitution the right of self-defence. Everybody has a pretty good gut feeling for what it is and it has worked for us for over 100 years, maybe even 200 or 300 years.
I will be looking for those answers in the debate and I will be scrutinizing this bill very carefully at committee.
Mr. Speaker, it is my pleasure to rise in the House today to speak to the citizen's arrest and self-defence bill. As we know, a good portion of the bill, and the part that I want to talk about today, was originally put forward as part of a private member's bill by the hon. member for .
I support her idea to enhance the ability of small businesses to protect their property through the mechanism of citizen's arrest. As a small business owner myself, I know all too well the enormous challenges that small businesses face across Canada.
I support passing the amendments to section 494 of the Criminal Code in the bill dealing with citizen's arrest to permit arrest without warrant and within “a reasonable period” rather than the present wording, which requires an arrest contemporaneous with the event. This change was originally introduced by the hon. member for in her private member's bill as a result of an incident at a convenience store in Toronto, the Lucky Moose. The name of that store is well known, although it sounds like it should be a store in Thunder Bay—Superior North. The owner apprehended an individual, who had stolen an item from the store, some time after the theft had taken place. The amendment to section 494 has been supported, in principle, by chiefs of police across Canada, prosecutors and defence counsels.
Bill proposes compressing sections 34 to 42 of the Criminal Code, which deal with the defence of a person and property, into two new parts. The stated rationale is to clarify the laws on self-defence and the defence of property so Canadians, including the police, prosecutors and the courts, can more easily understand and apply the law.
The legislation would expand the legal authority for private citizens or persons with small businesses to make arrests within a reasonable period of time after they found a person committing a criminal offence either on or in relation to their property, ensuring the proper balance between the powers of the citizens and the powers of the police. It would also bring much needed reforms to simplify the complex Criminal Code provisions on self-defence and defence of property and clarify where reasonable use of force would be permitted in relation to the above.
The amendments to Criminal Code subsection 494(2) on citizen's arrest would authorize a business person or other citizen to make an arrest within a reasonable period of time after he or she found someone committing a criminal offence that occurred on or in relation to his or her property. This power of arrest would only be authorized when there were reasonable grounds to believe it would not be feasible in the circumstances for the arrest to be made by a police officer.
It talks about reasonable use of force. The legislation would make it clear by cross-reference in the Criminal Code that the use of force would authorized in a citizen's arrest, but there would be limits placed on how much force could be used. In essence, the laws permit the reasonable use of force taking into account all the circumstances of a particular case. To be clear, a person will not be entitled to use excessive force in any citizen's arrest. That will continue.
There are some important considerations for us to take into account. A citizen's arrest is a very serious and potentially dangerous undertaking. Unlike a police officer, a private citizen is neither tasked with the duty to preserve and maintain public peace or, generally speaking, properly trained to apprehend suspended criminals. In most cases, an arrest might consist of either actually seizing or touching a person's body with a view to detaining him or her or using words where the person submits to the arrest. A citizen's arrest made without careful consideration of the risk factors may have serious, unintended physical or legal consequences for those involved.
When deciding if a citizen's arrest is appropriate, a small business people, or other citizen, should consider the following things: whether a peace officer is available to intervene at that time instead and their personal safety, or that of others, that might be compromised by attempting such an arrest. They should report information about the crime to the police instead of taking action on their own whenever possible. They should have a reasonable belief regarding the suspect's criminal conduct and ability to identify them. Last, they can and should turn over the suspect to the police without delay once that arrest is made.
Let us look at the current laws in this regard.
Under section 494(1), people may arrest a person whom they find committing an indictable offence, or a person, who on reasonable grounds, they believe has committed a criminal offence and is escaping from, and is freshly pursued by, persons who have lawful authority to arrest that person.
Section 494(2) of the Criminal Code, which is the provision proposed to be expanded by the bill, currently provides that anyone who is either the owner or in lawful possession of or has been authorized by the owner or the person in lawful possession of that property may arrest a person if he or she “find committing” a criminal offence on or in relation to that property.
“Finds committing” means situations where the accused is caught in the act, committing that offence. This concept extends to take into account a situation where the accused has been pursued immediately and continuously after he or she has been found committing the offence. Also, the existing law requires that when a citizen's arrest takes place, the individual must be delivered to a peace officer without delay.
Let us talk about self-defence and the defence of property as it relates to the proposed amendments. The new Criminal Code provisions are being proposed to clarify the laws on self-defence and defence of property so Canadians, including the police, the prosecutors and the courts, can more easily understand and apply the law. Clarifying that law and streamlining statutory defences may assist prosecutors and police in exercising their discretion not to lay a charge or proceed with a prosecution.
Amendments to the self-defence provisions would repeal the current confusing law and create one new self-defence provision. It would permit people who reasonably believe they or others to be at risk of the threat of force or acts of force or damage to their property to commit a reasonable act to protect themselves, their property or others.
As I said before, I am a small business owner and I know all too well the huge challenges of many kinds that small businesses across Canada face. Therefore, I would like to raise some of the reasons that are collateral and that bear on the need for small business people to feel more empowered by the Government of Canada and to make their businesses more viable. They are struggling. Small businesses across Canada today, the small economic engines across Canada, are struggling through our recession because of a lot of red tape and a growing tax burden as we shift taxes off of large corporations and onto small corporations.
Small business people are straddled with usurious credit card merchant fees. I and my party have talked about this issue, again and again, the need to get banks and credit card companies off the backs, out of the pockets, the bank accounts and the wallets of small business people across Canada.
Small business people pay fees to the credit card companies that are above and beyond what it costs them to provide average Canadians with the service that is required. Small business people are left with no choice but to pay those usurious fees because they cannot run our businesses without those credit cards. So far the government has not gone to bat to protect small businesses from usurious credit card companies and banks.
Another challenge that small businesses face is a government which has been constantly shifting tax burdens, tax responsibilities off large corporations and onto the backs, not only of average Canadians, but onto the backs of small- and medium-size business firms.
In the late 1970s, the marginal corporate tax rate on large corporations in the U.S. and Canada was the same, at 36%. Today it is still 36% in the United States, but through the Mulroney years, the Chrétien years, the Martin years and now under the current government, those taxes have been reduced. They are soon to be 15% and the government, through the HST, is shifting them onto average Canadians and the burden of collecting and doing the paperwork for that will fall on small businesses.
It has also been shifted through things like the EI premiums which are about to increase again, increasing the cost to Canadian workers and Canadian small businesses.
Despite the fact that small businesses are usually locally based and invest and hire in their local communities, governments, and the current government especially, have favoured large corporations with across-the-board tax cuts, whether they make sense or not, whether they result in investment in Canada or not, whether they keep jobs in Canada or not.
When the NDP government came in 11 years ago in Manitoba, it made a promise to take the tax burden off small businesses because it understood that it is small businesses which are creating jobs. In fact, 80% to 90% of all the jobs created in Canada for many decades have been created, not by big businesses, but by small businesses. The Manitoba government kept its promises and reduced the provincial corporate tax rate on small businesses from 11% down to zero. The government and small businesses in Manitoba have demonstrated through growth, prosperity and job creation, that this has been the economic engine which has made Manitoba the most prosperous province in Canada today with balanced budgets, high employment and weathering the recession almost without even noticing it.
Small businesses in our communities take many forms, from mom and pop convenience stores on the corner all the way up to significant engineering and consulting firms and software developers. In fact, 76% of small- and medium-size businesses earn revenue between $30,000, all the way up to close to $500,000 a year. Now, $30,000 may seem small to us, but it is important to a family that uses it to grow its business and support its children. Small businesses are major economic engines, pint-sized engines which jointly drive the economy of Canada and are growing, not shrinking, and staying, not leaving the country or leaving town, and adding jobs, not cutting jobs.
It is about time that our small businesses got more help and more respect from a government that is happy to hand out billions of dollars in senseless, unnecessary tax cuts to oil giants, big banks and big insurance companies.
Small businesses represent almost 98% of the total number of business establishments in Canada. That number comes from the Canadian Federation of Independent Businesses. Small- and medium-size businesses employ 55% of all the working individuals in Canada.
Service jobs are important. Government jobs provide important services across the nation. Union jobs in large companies are important to our economy. It is true that many of the dollars generated by large corporations do trickle down to small businesses in the community. But, to reiterate that number, over half of the direct jobs in Canada are jobs that relate to small- and medium-size businesses.
Small- and medium-size businesses are taking the lead on research and development in Canada, which is something we desperately need if Canada is to address our perennial shortfall in productivity and competitiveness.
Large corporations in Canada spend a piddling 0.8% of their revenues on research and development. Small- and medium-size firms spend an astounding 5.8%, almost 6%, of their revenues on research and development.
I am an evolutionary biologist and the best evolutionary strategy through a billion years was a main gene pool with outlier populations. It is in those outlier populations where progress, where evolution occurs, feeding that genetic material into the main gene pool.
Similarly, small businesses are the places where the new ideas come from. Steven Jobs and Bill Gates at one time were small businessmen. Look where some of these small businesses can go. We need to support them and help them.
Small businesses are exporters. They play a big role in keeping Canada a trading nation. Over 85% of all Canadian exporters are small- and medium-size businesses.
These facts and statistics show how vital small- and medium-size firms are to Canada's economy and to the future of every Canadian and every member of Parliament. We work for the Canadian taxpayers and increasingly, the Canadian taxpayers are average Canadians and small- and medium-size businesses.
Small- and medium-size businesses create jobs right here at home. They inject dynamism into the Canadian market, which we desperately need and they invest their revenues back into our communities. They do not export those investment dollars back to the United States. They do not pay them out in ridiculously over-the-top, obscene CEO salaries which then get stuffed into tax shelters in the Caribbean and in Panama.
Canada needs to do more to support our small- and medium-size firms. We should be encouraging the entrepreneurial spirit which in the past has driven so many Canadians to take a chance on a great idea and see where it goes.
Whether in Thunder Bay, Geraldton, Longlac, Marathon, Schreiber, Terrace Bay, Red Rock, and so on, in my riding of , we need to help and grow our small businesses, particularly given the role that the government has played through NAFTA, softwood lumber and non-help in the recession to our forest industry in northwestern Ontario. To a large extent, it is small businesses which have hung on bravely and are saving us.
Mr. Speaker, I am going to use most of my time speaking about Bill . I will open by summarizing what I think the pith and substance of the bill is, namely, two sections of the Criminal Code.
The Criminal Code is a large book that stuck together all kinds of laws in the 1890s after Confederation. The book is that old. It is a compendium that started out with a bunch of general provisions, including regarding cattle stealing, treason and things that we do not see a lot of these days; high treason indeed is not something that we often see. The code has often been amended, however, and appended to it are all of the fact situations that we have lived through as a country and community over our great history.
What we are seeing today is a call for two things, the modernization of the code with respect to two parts of a citizen's life, that of self-defence against an offence and the powers they may have on behalf of the state in arresting or stopping the action of a fellow citizen. Thus the bill deals with what we commonly call self-defence and citizen's arrest. We are looking either to modernize the general provisions that have been around a long time and/or are reacting to a specific fact situation or a number of them that have happened in this country.
We have to step back as parliamentarians and say that it is always good to modernize or harmonize the law, in this case the code and its antiquated language, with respect to what is happening now. There is no question about that. It is not always a good thing to have the Criminal Code or any law chase after a particular fact situation, no matter how compelling the reason is.
Whatever is enacted to react to a specific situation had better go through the prism of the general welfare and good of communities so that it fits every other fact situation in these two important areas of self-defence and citizen's arrest.
The two aspects, self-defence and citizen's arrest, are so different from each another that they are about 400 sections apart in the code. The self-defence provisions, which are among our oldest provisions, are in the 30s and 40s sections of the code, and the so-called citizen's arrest provision is way up in section 494. They are very different. However, they are tied together in this instance here, because what we are really reacting to as parliamentarians are a number of fact situations where specific individuals, shopkeepers or small businessmen or homeowners, have taken action to protect either their property or themselves and, in many instances, detained individuals.
It is extremely important to look at it from the point of view of asking people that if this were to happen to them, would they want that protection in the law. Let us look at both citizens. There is a citizen who did something wrong by taking goods from a shopkeeper, from another citizen, which is wrong. If we were to say there were nothing in the code that covered that theft or public nuisance, I would say we ought to put something in it.
However, let us not look at this in isolation. There are various sections covering these. If there is theft, nuisance, harassment, racist acts or violent acts, these are now covered by the Criminal Code. Let us be clear about that. There are provisions that cover the fact situations we have all been listening to and talking about today.
The question is, in the absence of action by the state, should a person be able to stop or prevent the action as it affects his or her personal safety or property?
Again, those sections are now in the code. They do allow citizens to take the law, as we say quite frequently and pejoratively, into their own hands. The Criminal Code now provides for that. Anyone who says there are no provisions in the code for a person to apprehend and stop another citizen from doing something is not telling the whole truth. Those provisions exist.
The issue is how far should those powers go.
This is a delegation of a state power. The state has the right, and the obligation in some cases, to arrest an individual who is breaking the law. In the section in the 490s, as I mentioned, about citizen's arrest, a citizen who is not a peace officer can also undertake that task that has not been performed by a peace officer.
We would expect, therefore, that if that were to be the case, it would have to be done with great care, greater care than by a peace officer, who also has to provide reasonable grounds for arresting someone and to abide by all the laws, including our Charter of Rights and Freedoms. The onus is even higher on someone who takes the citizen's arrest route to protecting him or herself, or property.
What we are trying to do here is have a debate as to whether the law as it sits is adequate, or whether we need to expand that law so greatly that judges and police officers would even have some doubts as to whether it would lead to increased vigilantism and the taking of the law into one's own hands.
I do not think there is anyone on any side of the House who is going to say that this is a simple question. It is a question of degree. The degree to which someone takes the law into their own hands on behalf of the state to protect themselves or their property is not a simple question; it is a metered question, a question that depends very much on the facts.
There was a saying in my days of reading the law that cases do not stand for grand propositions but turn neatly on their facts. That is really what we are talking about here. In the case of a shopkeeper in Toronto who was terrorized and humiliated and who had seen his livelihood, and perhaps his own personal safety, put in peril on many occasions, he decided that he knew who the perpetrator was and that he would apprehend the perpetrator after the fact.
What we are finding here is that if that action had been taken at the time of the incident, he would not have been charged with unlawful confinement. It is academic, but he probably would have had every right under the section as it now exists to take his citizen's arrest role seriously and have it ratified by police officers, prosecutors and the judges, if it have ever gone that far.
When this case really first came up, I knew many members of Parliament, and not just from the greater Toronto area and all parties, who felt very badly that this shopkeeper who had merely been defending his security had been charged. I do not think there is a person who did not feel for that citizen of Canada.
The question at that time seemed simple, I suppose, to me. I thought that at some point, on the volition of the government or that of the opposition or someone else's, we would change the Criminal Code, as I mentioned in my first remarks, so that it would evolve into a modern document. I thought that we would respond to this by suggesting that a reasonable time could elapse from the time of the offence to the time of the apprehension and that we would provide not just that defence but also the ability to apprehend someone under the citizen's arrest provision. I really thought that was maybe all we would be facing with respect to this whole area.
Let us remember that this could not have been a burning issue for the government before that incident in Toronto. Let us recall, as we do profoundly on this side, that the government has been in power for over five years and has had multiple opportunities to bring forward justice legislation. It has brought forward many justice bills that it has killed itself. At no time until Bill C-60, some five years after coming into power on a law and order agenda, a putative or Pyrrhic law and order agenda, did the government do anything with respect to these two issues in the code. It did nothing. These were not burning issues.
From year one to year five of a mandate, there is a fact situation that all members of Parliament react to in a positive way. That is, they want to help, and the Conservatives came forward with Bill C-60. However, the bill does not make that little change to the code that would fit the fact situation and make the criminal law more modern and responsive. The bill perhaps goes too far, which is the argument being made as bill moves along to committee.
I say this because the visited Chinatown in Toronto, as reported in The Toronto Star, where he said that previous governments had refrained from stiffening the law because:
||they [had] wanted to avoid vigilantism, which is a genuine threat to the rule of law.
However, he added that many Canadians believed that “the right balance [had] been lost in the justice system“ and that there was a sense that criminals were protected at the expense of victims.
I had my researcher look back to see if there were any quotes specifically on this aspect of vigilantism and self-defence and the provisions for citizen's arrest. However, there had been no comments made by the Prime Minister or his on reforming this law, until this fact occurred.
So we have a Prime Minister who is commenting on previous governments. I would say that the indictment is against the Prime Minister and his various justice ministers who, for five years, have done nothing about this problem, which they seem to think existed for some time. It is a bit misleading for the Prime Minister to say that in a political scene, of course. However, he also wanted to make the police feel secure by saying at that time that the:
||—police are the first line of protection against crime—
—which everyone would agree with—
|| [And that] Police officers will continue to have the responsibility to preserve and maintain public peace as Canada’s first and foremost criminal law enforcement body.
That is fine, but what this act would go ahead and do is perhaps to give people the view that as citizens they are now going to have more powers to prevent wrongdoing as they see it on their property. This is not me saying this, but the deputy chief of the Halifax Regional Police service, not that of a minor, inconsequential backwoods or half-professional force but one of the best police forces in Canada. The deputy chief of the Halifax Regional Police said of the law as it is that:
|| It doesn’t give any great power of citizens to go out and grab people on the street.
He said that as part of a round table discussion with the Minister of Justice at the time. Throughout the article by the Canadian Press reporting what he said, he was very cautious in suggesting that any accretions to public arrest powers should be exercised very conservatively, which is not a word that I use very often. He said that these were not matters that people should engage in without some caution. He said that the law enforcement agencies had enough of a challenge in teaching experienced officers how to interpret the law, and wondered if it meant now that they would have to go out and give citizens courses on how to perform a citizen's arrest.
Experts outside the government and outside of Parliament have also recognized that the rules around self-defence, the extension of citizen's arrest, tell us that if someone performs an action in reaction to an assault or an invasion or perceived invasion or threat to personal property, he or she might act in a physically, emotionally, or other harmful way to another person.
The person would then have to have a defence to not be charged or convicted, and that is generally in those provisions that I mentioned in the low 30s and 40s of the Criminal Code on self-defence.
The idea that one could tinker with self-defence on a situational basis is rather appalling. The police officers who participate in round tables do not come to those round tables with written amendments to the laws that the government then puts up on the television screen the next day after consulting with Department of Justice lawyers.
I heard today at committee that a number of provincial prosecutors who were talking about amendments to a bill were not consulted on the bill as presented. There is something wrong when ministers of justice and prime ministers do not consult police officers and crown prosecutors when amending legislation.
We have had experts from the police and prosecutorial communities say that because each case is unique with widely diverse and sometimes contradictory evidence, no broad policy statement is intended with respect to the use of a firearm in the defence of one's home, for instance. This was in response to a situation where certain charges were dropped against a person who was defending his home. This tells us that these are very complex issues.
While the government has put forth a bill that seemingly reacts to a very small set of circumstances, it has in fact opened up a Pandora's box that must be studied very vigilantly and diligently at committee to make sure that the box is not too wide open.
As I said, everyone has sympathy for the shopkeeper in Toronto. This is one of those issues that unifies all parties. I heard the NDP speak eloquently about the situation, as have the Liberal Party and the Conservative Party. However, instead of bringing a bouquet, the Conservatives bring an entire flower garden to the issue. It is confusing. Are we just responding to a particular set of circumstances for which minor amendments to the code would suffice, or are the Conservatives trying to open up a very dangerous Pandora's box that might lead certain people to believe that the law of Canada has changed?
I saw the on television for the usual 6.8 seconds. He said that we were allowed to take that law, and we do not really need the charter, but if someone goes across the corner of our property with a Ski-Doo, we can defend that.
This is not an urban or rural issue. It is not a male or female issue. It is not an issue that divides on the basis of race, religion, or in what part of the country one lives. It is the Criminal Code of Canada and it has to apply in every fact circumstance.
The good people of Grand Manan Island in my province of New Brunswick had a problem several years ago. People from the mainland were going there and selling drugs to their young people. They frequented or lived in a house which the community felt was the centre of this activity. It is alleged that the people got together as a community and burned the house down and ran those people off the island.
As a father of three young children and a former mayor of a city, I understand local politics. I understand about protecting the community. On one level we would say, good for them that they cleaned up the community. However, we might recoil and think that if an illegal activity was going on, where were the police? Why were the police not able to do the job that should been done?
We might ask the question of the police and they might say that they are severely under-resourced, that the troops the RCMP in rural New Brunswick were supposed to get did not come, that the resources they are supposed to have are not there and it is a rural and remote community and they just cannot enforce the laws that are on the books. We would have an understanding of that.
However, to open up the law to let people burn other people's houses down is not necessarily a solution. In the trial sentencing, if there was wide open judicial discretion in this case, a judge might take into consideration the volition of the community and, while saying it was wrong, be a little merciful on the sentence. In fact, that is what happened in my province and it showed that the system worked. It is under-resourced, but it works.
However, not all of this law is good law and we will take a good look at it at committee. I want to commend those who spoke in favour of the good provisions that helped the store owner in Toronto.
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 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 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 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.
Mr. Speaker, the bill should be named the David Chen bill, or the we thank David Chen for opening our eyes to the deficiencies of the Criminal Code, section 494, bill or, even more importantly, the why David Chen deserves credit when the Conservatives want to give Canadians none bill.
Why do I say that? Members might think me a little harsh, but David Chen, a legitimate store owner who runs a family business, who minds his own business, who calls in the police whenever there is a problem and there is a problem virtually on a daily basis, and he asks the court system, the justice system to help him make a living in Canada, like so many Canadians, and what happens? One day he sees a thief, someone who has stolen from him in the past, someone who has appeared on his video screen, someone on whom he has called the police on several occasions, someone who has more than 47 convictions for theft. He sees him come back not one-half hour after he has stolen from him.
He seized the thief and held him. He called the police and the police came, but they arrested him. They charged him with a whole slew of charges, including forcible confinement, arrest, kidnapping. Imagine, in a country like Canada where due process is a very important element of our life, the store owner, the defender of his own property, is the one who is charged.
For a government which likes to have these news bite type of titles to its legislation, it does not do that this time. Instead it sends its senior minister, the , because of course this is an immigration issue. It is not a law issue. It is not a justice issue, it is not a tough-on-crime issue. This is an immigration, citizenship and political issue.
Off the goes, to demonstrate that the Government of Canada, no, I am sorry; what is its new title? It is not the Government of Canada. It has been personalized. The one individual, the guy who makes all the rules, the guy whose initials are S.H., dispatches his senior minister on a citizenship, immigration and political issue.
On September 27, 2009, and let us keep that date in mind because it is an important date, he says that this is an egregious problem and we are going to change this. I notice that the accompanied him. He said that this is a real problem and we are going to correct it because this is unjust, untrue and it is not right that a guy who tries to run a family business gets put through a process where he is a victim of somebody else's crime. He is a victim, again. He says that the Conservatives are going to change the law. That was on September 27, 2009. What is the date today? I am not sure if the government members can actually read a calendar, but the last time I looked we were in the month of March in 2011.
The government finally decided to present a piece of legislation. If I seem angry, it is because I am angry for all those citizens who, like David Chen, were looking for the government to do something right. They were looking to the Government of Canada, before it became the S.H. government, but it is all about evolution.
The interesting thing about September 27, 2009 is two things were happening concurrently. There was paranoia on the government benches about the potential of an election and the was dialoguing with his colleagues, the attorneys general of the various provinces, about precisely what to do in a case like David Chen's, which apparently happens more often than not.
I asked my colleague from Windsor what he thought in his capacity as a former professor of law, about making this particular minor change that would have given direction to everybody. Just a few days ago, the spoke on the bill and said that they are doing this because the courts pay attention to what Parliament says when they look for direction in law. Then he proceeded to give three, four, five, a million reasons as to why he wanted to consolidate the concept of reasonableness in law. However, the Minister of Justice knew in 2009 when David Chen was first ordered to appear at court that the law was going to change because everyone agreed it needed to be changed. What did he do? He allowed David Chen to use his own resources, at his own expense and stress in order to test that concept in court, to see what the courts would do. They did it for him.
So instead of thanking David Chen for saving the government all this money, the Conservatives said they are going to have a piece of legislation. Everyone wants to glory in the victory that appears on behalf of all Canadians. David Chen deserves not just a medal, but he also deserves to be compensated for all his work.
Two members of Parliament, the member of Parliament for on June 16 last year presented a very brief proposal to amend section 494 of the Criminal Code, and the member for did a similar thing in September 2010. We come to October 29, 2010 and the courts decide in favour of David Chen. The government rushes to congratulate him. The , the one who runs the government, for whom the government is named, says the government is going to make this its first priority and it is going to change the law. However, David Chen already had to go to court.