By all means, and thank you, Mr. Chairman.
I'm pleased to appear before this committee to present the citizen's arrest and self-defence act. This legislation aims to do three things: number one, it aims to expand the time in which a citizen may arrest another citizen for an offence or in relation to property; number two, it aims to replace the existing laws on self-defence with a new and simplified defence; and number three, similarly, it aims to replace the existing laws on defence of property with a new and simplified defence.
The members of the committee are no doubt aware of recent very public events involving citizens who resorted to using force against persons they suspected had stolen or damaged their property.
In addition to raising concerns about the limits of the power of citizen's arrest, these cases have also generated confusion about the relationship between citizen's arrest and defence of property, which itself is closely associated with the defence of self-defence.
These three mechanisms share common elements and arise in similar fact situations, which is why our government is presenting all three in Bill . They typically come before the courts as defences when a person has done something that would otherwise be an offence, which they did for the purpose of apprehending a suspect or defending property or a person. Each provision reflects a different purpose for acting in emergency situations.
The bill's proposal to change the law on citizen's arrest is straightforward. Subsection 494(2) currently permits a property owner or a person in lawful possession of property to arrest a person they find in the act of committing an offence on or in relation to that property. Currently this provision does not allow for the arrest of a suspect even a short period of time after they were detected committing the crime.
This bill will allow more flexibility in the timing of an arrest. Specifically, it would amend subsection 494(2) to allow a person to arrest another within a reasonable time of finding the suspect committing the offence.
Some stakeholders may express concerns about the risks associated with permitting more arrests by citizens and the possible encouragement of vigilantes. I agree that, wherever possible, arrests should be undertaken by trained law enforcement officers, but we know this may not always be possible. I'm confident that the expansion of the citizen's arrest powers will not lead to vigilantism. Indeed the approach of Bill sets out a reasonable compromise. It extends the period of time for a citizen's arrest, but any delay must be reasonable. This power is itself limited to the narrow set of cases involving crimes of or in relation to property.
In addition, before making use of the extended time period, the arresting person must believe on reasonable grounds that it's not feasible in the circumstances for a peace officer to make the arrest. The existing law also requires the arresting person to turn over the suspect to police as soon as possible. These safeguards will help ensure that individuals who make a citizen's arrest are involved in law enforcement only to the degree necessary, and that the police maintain their primary law enforcement function. Arrests are dangerous and unpredictable, and our government will continue to urge Canadians to leave this job to professionals wherever possible, and in every case to exercise extreme caution.
In terms of the defences of property and person, the bill replaces the current multitude of provisions, which are largely unchanged from the original text enacted in 1892, and actually they had a pretty extensive history for 1892. These are basically the provisions that were contained in the laws of Upper Canada in or about 1840.
We have replaced those provisions with a simple, easy-to-apply rule for each defence. For decades criminal practitioners, the Canadian Bar Association, the Supreme Court of Canada, academics, and many others have criticized the law of self-defence primarily, but also the law of defence of property, as being written in an unnecessarily complex and confusing way.
The complexity of the law is not without serious consequence. It can lead to charging decisions that fail to take into account the merits of the defences in particular situations. It can confuse juries, and it can give rise to unnecessary grounds of appeal, which cost the justice system valuable time and resources. The law should be clear and clearly understood by the public, the police, prosecutors, and the court.
Bill C-26 meets those objectives. It makes the act more specific and simplifies it without sacrificing existing legal protections.
The basic elements of both defences are the same and can be easily stated. Whether a person is defending themselves or another person, or defending property in their possession, the general rule will be that they can undertake any acts for the purposes of protecting or defending property or a person as long as they reasonably perceive a threat, and their acts, including their use of force, are reasonable in the circumstances.
There are some special features of each defence that I would like to briefly mention. In respect of self-defence, an additional feature proposed in this bill is a non-exhaustive list of factors to help guide the determination of whether acts taken for a defensive purpose are reasonable. Clearly, what is reasonable depends upon the circumstances of each individual case; however, a number of factors commonly arise in self-defence cases and are familiar to the courts.
For instance, relevant considerations include whether either or both parties had a weapon and whether there was a pre-existing relationship between the parties, in particular one that included violence. Proportionality between the threat and the response is also highly relevant. The greater the threat one faces, the greater the actions one can take to defend against that threat.
The list can be employed to facilitate and improve charging and prosecution decisions. In court, the list will no doubt be a useful reference for the judge to use in instructing the jury. A list such as this also indicates to the courts that existing jurisprudence on these issues should continue to apply. We don't have to start from scratch.
The right to defend oneself from threats is fundamental. It's therefore tremendously important that we get it right and that we provide guidance as we shift from a highly detailed set of laws to a defence based on more general elements.
Now, with respect to the defence of property, the defence of property has as its core the same basic elements as self-defence, namely, a reasonable perception of a threat, a defensive purpose, and actions that are reasonable in the circumstances. However, the defence of property is necessarily more complex than self-defence.
There are many different types of property claims and interests, most of which are governed by provincial laws. Property concepts are implicated in the defence. The idea of peaceable possession of property is an additional condition for accessing the defence of property.
This term is used in the current law and has been interpreted by the courts to mean possession that is not subject to a serious challenge or that is not likely to lead to violence: for example, a thief who stole property and is not in peaceable possession of that property and cannot legally use force to defend his possession. It makes sense.
The criminal law prioritizes the preservation of the public peace and the status quo. The law protects possession, not ownership. Ownership disputes must be resolved by the civil courts, not through criminal action. The law permits what would otherwise be a crime to defend against emergency threats that risk permanent loss of or destruction to property.
As a final note, I draw your attention to the fact that both defences contain a special rule in relation to their use by someone who claims to be defending against law enforcement actions, such as an arrest or the seizure of property pursuant to a warrant. The rule is this: unless the person reasonably believes that the peace officer is acting unlawfully in discharging their duties, defensive force may not be used in this context.
Bill is consistent with the current law in these situations, but hopefully—as I believe it does—expresses the law more clearly. I encourage the members to support this legislative package, which aims to allow citizens more latitude in arresting individuals they have seen commit an offence on or in relation to property and to bring our laws of self-defence and defence of property from the 19th century into the 21st century.
Thank you, Mr. Chairman.
This is always a very interesting aspect. I remember that in my criminal law classes my fellow law students found this one of the most interesting topics, because there is a large measure of subjectivity and objectivity in this. So finding the proper equilibrium in all of that is not always an easy task.
My colleagues have already broached the points I wanted to raise, but I would simply like you to reassure me. When you developed the new criteria in clause 34.1, was this after studying all of the criteria that had already been established in jurisprudence?
My concern is the following. When defence attorneys look at the changes to the legislation, they will certainly examine jurisprudence and the criteria and grounds that have been invoked to claim self-defence. In fact, that is based to some extent on existing caselaw. Can we be reasonably certain that all of this was looked at, so that we do not wind up with costs, so that people don't say that this was already pleaded successfully and that the legislator did not include it again?
Would that be an indication that those are not grounds to be considered? Do you understand what I am trying to say? Did you look at all of the criteria? That does not mean that the list is exhaustive, because there could be others in years to come, but I am referring to what existed before and to current jurisprudence.
There were a couple of versions that were introduced in the previous parliament with respect to citizen's arrest, and we had a close look at all of them when we developed the government's legislation.
It seems to me that we are better off confining it to individuals who are witnesses to the offence themselves. Just since I've been here this morning, on at least two different occasions from two speakers, I've had the question of vigilantism. Nobody wants Canada to go down that road. We have confidence in law enforcement agencies in this country. We want to work with them, but we know that an arrest by somebody in law enforcement may not always be feasible, may not be able to be timely, so we want to have these provisions.
To have a situation where anybody at any time would be able to arrest an individual because they reasonably believe an offence had been committed somewhere at some time I think would be a huge expansion of the citizen's arrest provisions. I don't think that is justified. To have it more focused on situations that do arise where people see somebody committing a crime I think is the best compromise.
We looked at all these issues, but it was time to have a look at citizen's arrest, and to change those provisions so that if you caught somebody out in the alley three hours later, there's no question about that. Again, if you're acting reasonably, if you witnessed the crime and it's within a reasonable period of time—you have that and other qualifications—as I say, I think that is a good fit for this.
We weren't trying to expand this into some other area that I think would be quite foreign to the people of this country.
Thank you for that question, Monsieur Jacob.
You'll notice, in our definition of who can exercise these responsibilities or who can act on these occasions that are presented to them, that we've clarified the laws with respect to that individual: it's not just the owner of the property, or people who have a certain right or a title. We've made it clear that the person could be authorized by the owner or by the people in possession of the business or the property, and that certainly would include private security agents. If you ask them, I think you will find that they are quite satisfied with that. I would even go so far as to say they would be pleased by the fact that they will come within the definition for this particular piece of legislation, so that the person who has been given this legal responsibility to protect the property can exercise the same rights as the owner would.
I think you'll find those provisions within the act, as you'll see in proposed 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”, etc. Again, I think what you'll find is that people who are in that business will favourably look at this and say, “Look, this actually clarifies what can or what can't be done, and it obviously includes us.”
I wouldn't want to be any more specific, or start identifying who will come within the definition of this—for example, a private security firm—because once you particularize those definitions, you'll end up finding somebody else who isn't included in the definition, although they are a reasonable person to assume that role under the circumstances. This is why, in my answers to Madame Boivin's questions, I said it is a non-exhaustive list that we have here in the front part of the bill, and there's a reason for that: if other situations develop in the future, we don't want to say, “Oh, now we have this gap in the Criminal Code where it's not covered.” When we draft these, we try to draft them not only for whatever situations and challenges we are facing today, but also in such a way that they will encompass future incidents that are similar to the types that we are addressing today.
I think there is a danger if we become too specific.
If we're talking about downtown Toronto, most of us would probably agree that it would be unreasonable if you didn't turn an individual over for 24 hours. You could be in parts of this country where it's not feasible to have a law enforcement agent there, that 24 hours may not be enough time to get someone—a member of the RCMP or whoever is involved with law enforcement. We deliberately don't specify that. We don't create rules that would be applicable in Toronto but would be unreasonable somewhere else in the country, or have a test that works very well, for instance, in Canada's north, where someone from law enforcement may not be readily accessible, and then say, “Oh, that would be reasonable in downtown Toronto.” No, we don't do that. I think we're better off leaving it and saying, okay, what is reasonable under the circumstances.
To use another example, if you arrest somebody here in the city of Ottawa, it would be very difficult for you to try to make the case that you didn't turn the guy over to the police for three days. My guess is that the courts would say that's not reasonable; that doesn't come within the definition. But you could be in a remote community in Nunavut and say, “Look, we couldn't get anybody in here. It was unfeasible to have somebody from law enforcement here within 24 hours or 48 hours.” I think a court would then say, “Yes, that is reasonable under the circumstances.”
We want to make the point, and the case here, that whatever that reasonable test is, we want you to turn this individual over to a law enforcement agency. We are not in the business of having people imprisoning Canadians on their own initiative and detaining them. If you've witnessed a crime and arrested an individual, now turn him or her over, and do it as quickly as possible.
You've made a very good point.
If you were doing your thesis on the whole question of the tests of reasonableness, the jurisprudence has helped define that. What was reasonable in 1840 in Upper Canada, when these provisions were written, would be much different from tests today as to what is reasonable, but nonetheless, the reasonableness test has worked.
You're quite correct. With respect to the Criminal Code, we have an obligation to continuously have a look at it, to make sure it reflects societal needs.
I made the point here when I was here on auto theft. It was pointed out to me by the Attorney General of Manitoba that there were specific provisions for stealing a cow, but no specific provisions for stealing a car. I remember at the time I said I promised we were going to change that—not the part about stealing the cow, that's still an offence—but it's reasonable to have sections with respect to auto theft because, again, that reflects what's happening in society. Just because there were no cars when the Criminal Code was enacted in the 1890s doesn't mean that it's not a serious matter for us today, and that's why we continuously try to have a look at these, and part of what we're doing is updating the laws with respect to defence of property and self-defence.
Thank you very much, Chair.
I'll pick up on that last point. I think the previous laws—I talked about the policy side with the minister—did make a distinction between movable property and real property or dwelling houses, specifically that you couldn't cause bodily harm in the defence of movable property. Then there was a different rule for preventing the invasion of your house; under section 40, you could use as much force as is necessary to prevent someone from invading your property.
You said you wouldn't think it would be reasonable to use deadly force in defence of property, and you used the word “generally”, and I agree. In fact, Australia, we've been told, has a rule that says you cannot use lethal force in defence of property, and we did have a rule that said you can't use bodily harm in defending against movable property. If someone is trying to steal your purse or whatever, you can't stab them.
Those have been left out of this. It's one thing to say, well, we all know what reasonable is, but we don't all know what reasonable is and we may have very different attitudes. There may be different attitudes in some parts of the country than in others, and there may be different attitudes among some people than among others. At the end of the day, it's going to be a judge or a jury deciding what's reasonable in the circumstances.
I'm a little concerned about the lack of guidance this provision actually gives. Can you tell us why you left that out and why you made no distinction between someone having their home invaded, for example, and someone having their purse snatched?