Proceedings of the Standing Senate Committee on
Legal and Constitutional Affairs

Issue 19 - Evidence for May 17, 2012

OTTAWA, Thursday, May 17, 2012

The Standing Senate Committee on Legal and Constitutional Affairs, to which was referred Bill C-26, An Act to amend the Criminal Code (citizen's arrest and the defences of property and persons), met this day at 11:01 a.m. to give consideration to the bill.

Senator Bob Runciman (Chair) in the chair.


The Chair: At the outset, I want to apologize for the notice that was circulated with the starting time in error. We have been assured that it will not happen again but to anyone who was misled by that, we extend our apologies.

Good morning and welcome colleagues, invited guests and members of the general public who are viewing today's proceedings of the Standing Senate Committee on Legal and Constitutional Affairs on the CPAC television network. Today we begin our consideration of Bill C-26, An Act to amend the Criminal Code (citizen's arrest and the defences of property and person). This bill was first introduced in the House of Commons on November 22 of last year. The summary of the bill states that it amends the Criminal Code to enable a person who owns or has lawful possession of property or persons authorized by them to arrest within a reasonable time a person whom they find committing a criminal offence on or in relation to that property. It also amends the Criminal Code to simplify the provisions relating to the defences of property and persons.

Bill C-26 was referred to the committee by the Senate on May 15, 2012, for further examination. The committee intends to hold public hearings on the bill over the next few weeks. These hearings will be open to the public and also available via webcast on the website. You can find more information on the schedule of witnesses on the website under "Senate Committees.''

To begin our hearings today, we are pleased to welcome back to the committee some familiar faces: Honourable Rob Nicholson, P.C., M.P., Minister of Justice and Attorney General of Canada; and accompanying the minister, from Justice Canada's Criminal Law Policy Section, Catherine Kane, Director General and Senior General Counsel, Criminal Law Policy Section; and Joanne Klineberg, Senior Counsel, Criminal Law Policy Section. Welcome all.

Minister, the floor is Your Honour.

Hon. Robert Nicholson, P.C., M.P., Minister of Justice and Attorney General of Canada: I am pleased to appear before the committee to present Bill C-26, the citizen's arrest and self-defence bill.

The bill has two main components. First, it expands the time in which a citizen may arrest another citizen for an offence on or in relation to property; second, it replaces the existing laws on self-defence and defence of property with new and much simpler defences.

Members of the committee are probably familiar with some recent high-profile cases involving citizens using force against others who they suspected of trying to take or damage their property. While these cases have raised awareness about the powers that citizens have to protect themselves and their property from possible criminal conduct, they also have highlighted come concerns about the limits of these powers and the risks that Canadians take when they act in such emergency situations.

Citizen's arrest, self-defence and defence of property are distinct legal provisions that authorize people to engage in conduct that would otherwise amount to a criminal offence. They come before the courts as claims by a person charged with a crime that they were authorized to do what they did, either for the purpose of apprehending a suspect or defending property or a person.

Each rule reflects a different purpose for emergency actions, but they often arise together on the same set of facts and circumstances. This way, I believe it is appropriate to combine them together and have them in one bill.

First, let me talk about the proposals with respect to citizen's arrest. The Criminal Code sets out a variety of arrest powers for police. Clearly, wherever possible, arrests should be undertaken by trained law enforcement officers, but we know that this is not always possible.

The Criminal Code, therefore, also contains several powers of arrest available to the private citizen. Subsection 494(2) of the Criminal Code is one such power. It permits a property owner or possessor to arrest a person they find in the act of committing an offence on or in relation to that property. Because the focus is on catching a would-be criminal "in the act,'' this power does not allow for an arrest of the suspect to be made even a short period of time after they were detected committing the crime. If an arrest is made at a later point, it is not a lawful arrest, and the person making it can be prosecuted for offences they have committed in effecting that arrest, such as assault.

Bill C-26 will alter the narrow scope for arrest by allowing slightly more flexibility in the timing of the arrest. Specifically, this bill would amend subsection 494(2) to allow a person to arrest someone they have found committing an offence not just in that moment but also within a reasonable time of the offence.

The approach in this bill is in itself reasonable and measured. It extends the period of time for a citizen's arrest, but the length of and reasons for the delay must be reasonable in each case. In addition, the extended time period can only be relied on if the arresting person has first ruled out the possibility of police making the arrest instead.

The law already contains another protection: The arresting person must turn over the suspect to police as soon as possible. All of these limitations apply whether the person making the arrest is an individual property owner or a security agent employed by a property owner. Any arrest that falls outside of the parameters of the law — whether because there were no grounds to arrest, the delay was unreasonable or excessive force was used — can lead to a prosecution.

Of course, other remedies such as civil lawsuit remain, but the law provides both safeguards and remedies, and I believe they offer adequate disincentives against vigilante justice.

In all cases, citizens should try to pass on information about crime to the police so that they, as trained professionals, can enforce the law.

A citizen's arrest should only be contemplated where it is absolutely necessary, and even in those cases, because arrest situations are inherently dangerous and unpredictable, citizens should always exercise caution.

In terms of defence of property and defence of the person, Bill C-26 would replace the current set of provisions with straightforward, easy-to-apply rules for each defence.

The existing laws for both defences were included in the Criminal Code in 1892, but they are actually older than that. When I had a look at this for the first time, I found they actually mirror the legislation that was introduced into Upper Canada in 1840, and they have not been much changed since that time. Despite having relatively simple underlying principles, the laws are unnecessarily complex and confusing. For decades, these laws have been criticized by virtually every sort of criminal justice professional, from the courts to bar associations to academics to law enforcement agents.

The complexity can have serious consequences. It complicates the charging decisions of police. It confuses juries and costs the justice system time, money and energy by giving rise to unnecessary grounds of appeal. The law can and must be clear and easily understood by the police, the public, prosecutors and the courts.

Bill C-26 meets these objectives. It brings clarity and simplicity to the law without sacrificing any existing legal protection.

The basic elements of both defences are the same. Whether a person is defending themselves or another person, or defending property in their possession, the general rule will be that they can undertake acts that may otherwise be criminal if they reasonably perceive a threat, they act for the purpose of defending against that threat, and their acts are judged to be reasonable in the circumstances.

Self-defence is a cornerstone of any criminal justice system. To complement the simpler self-defence rule, Bill C-26 proposes a non-exhaustive list of factors to help guide the determination of whether acts taken for a defensive purpose are reasonable. What is reasonable depends on the facts and circumstances of each individual case. However, a number of factors commonly arise in self-defence cases and are familiar to the courts.

For instance, it will typically be relevant if either or both parties had a weapon, whether there was a pre-existing relationship between the parties, particularly one that included violence. Proportionality between the threat and the response is of course relevant. The greater the threat one faces, the greater the actions one can take to defend against that threat.

I should bring to this committee's attention the fact that there were a couple of changes made to this list of factors by the House of Commons. One change modified the opening words of proposed subsection 34(2) to clarify that all relevant circumstances pertaining to the accused, the other party and the incident must be taken into account.

Another change added the notion of "physical capabilities'' to the factor that referred to the age, gender and sex of the parties. A new factor was added, namely "any history of interaction or communication between the parties to the incident.'' This could include a single exchange, and so is slightly different from the factor that deals with the "relationship'' between the parties.

The list is useful in many ways. It can improve charging and prosecution decisions and help guide judges in instructing juries. It also signals to the courts that they should continue to apply existing jurisprudence under the new defence.

I would also like to draw your attention to a clause in both defences that deals specifically with defensive actions taken against law enforcement, such as police executing an arrest or search 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. This is consistent with the current law but is set out more clearly.

I encourage the members of this committee 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 into the 21st century.

Thank you very much.

The Chair: Thank you, minister. I understand you have to leave at 12:00. We have a little over 45 minutes, so I encourage members to be as concise as possible, and we will begin with the deputy chair of the committee, Senator Fraser.

Senator Fraser: Welcome back, minister and Ms. Kane and Ms. Klineberg, familiar faces as the chair said. It is always very helpful for us to hear from you.

I have two questions and I will try to keep them brief. First, what is the effect of these provisions on self-defence for battered women? You are familiar with what is sometimes called the battered woman defence. What changes, if anything, for them?

Mr. Nicholson: Again, I think it makes it straightforward. It clears the way. It is part of the non-exhaustive list of considerations that are taken into effect, the relationship between the individual; but an assault is an assault, and obviously in cases like that this law is intended to cover situations like that.

Senator Fraser: I will come back on that one with the officials later.

The second question has to do with the citizen's arrest provisions and the use of the phrase "within a reasonable time after the offence.'' I think we all understand that what may be a reasonable time will not be the same in downtown Toronto as it might be in a remote hamlet in Nunavut.

Mr. Nicholson: Exactly.

Senator Fraser: However, it still seems to me that this leaves really quite wide latitude, opens the door perhaps to different outcomes in similar situations, as distinct from different situations. Would it not have been simpler to say something like "get the person to the police as soon as possible'' or "make the citizen's arrest as soon as possible,'' rather than just go for "reasonable time''?

Mr. Nicholson: It seemed to me we had to add the provision "within a reasonable time'' to make amendments to the existing law, which is you basically have to catch the person in the act and arrest the individual right then. It seemed to me that this was, to borrow the term again, a reasonable response to that.

Senator Fraser: I am not quarrelling with the underlying idea, just with the phrasing of it.

Mr. Nicholson: Departmental officials perhaps can answer whether it could be any other reasonable term, but it seems to me this gets the job done within a reasonable period of time. As you pointed out, senator, what is a reasonable time in Nunavut may not be the same in downtown Toronto. However, that being said, each case has to be evaluated on its own merits, and it seems to me this was a good way to proceed.

Senator Angus: Minister, good morning and welcome. First, I understand this bill has passed through the House of Commons as amended.

Mr. Nicholson: It has.

Senator Angus: With unanimous approval by all parties; is that correct?

Mr. Nicholson: I was very pleased to get as much support as we did on it, yes.

Senator Angus: What amendment was made in the house? Was the amendment significant?

Mr. Nicholson: There were slight changes with reference to the non-exhaustive list, that all the elements are to be taken into consideration, and there was also an addition, among others, that said that the courts should take into consideration the exchange or the interaction between the individuals. It may not be just a relationship that is relevant in terms of a person being able to protect themselves. It may be just, for instance, one exchange, one communication that could have taken place, and we believe that should be taken into consideration, and indeed, those were the amendments. Again, the amendments are modest, but I think in each case they were reasonable, and I hope you concur when you study it.

Senator Angus: We understand that Bill C-26 is virtually the same as Bill C-60 that came before the last parliament. Is that correct? Are there any changes?

Mr. Nicholson: Yes, it is virtually the same, but again, some changes were made in the House of Commons. The same principle applies; it is time, after 172 years, to have a look at updating the wording on self-defence and defence of property. I have heard this over the years from law enforcement agents and others who say it is very complicated. When you look at the wording of it, it clearly reflects the priorities and the terminology of another era. I think it is important for us to make sure that the law is clear and straightforward as to what it seeks to accomplish, and I am satisfied that this is. It is virtually the same as it was when we introduced it in the previous Parliament, and I am confident that it will, and hopeful that it does, get passed this time.

Senator Angus: Minister, one of the interesting things to me and, I think, to some of our colleagues here is that suddenly, in the last year, for whatever reason, the concept of citizen's arrest and/or self-defence provisions in the criminal legislation have come into public focus not only because of the Chen case in Toronto but also because of the Zimmerman case down in Sanford, Florida, which seems to be permeating the electronic media on a daily basis, even now, quite a few months after the alleged events. Public curiosity has arisen. In the case of R. v. McIntosh, our courts have pointed out that our laws do need revamping and overhauling and modernizing, as you have said.

Is this legislation based on the laws in some other jurisdictions? I do not believe it is in the case of stand your ground legislation, as in Florida, but perhaps you could go into that as well. Is this a Canadian version of stand your ground?

Mr. Nicholson: This is Canadian legislation that we are updating. I appreciate that there are many different responses in other jurisdictions, but, ultimately, we are guided by Canadian experience, Canadian jurisprudence and the Canadian facts, as we read them, with respect to our consultations with individuals.

I have, over the years, as Minister of Justice, particularly with respect to the self-defence and the defence-of-property provisions, had it pointed out how archaic they are and how confusing they can be.

You are quite correct; there is a certain public interest in the whole question of citizen's arrest, and, again, it falls on us as legislators to look at the legislation to see if it properly and adequately responds to the challenges out there. That is exactly what we have done.

Senator Jaffer: Thank you, minister, for your remarks. I felt that they certainly helped me to understand things better.

I have a few clarifications before I ask the question. In your remarks, you mentioned "non-exhaustive'' in relation to proposed subsection 34(2) of the definition. It is "but not limited.'' You mean the same thing, right?

Mr. Nicholson: Yes.

Senator Jaffer: One thing that concerns me — and perhaps you can clarify it for me — is whether the element of provocation in self-defence is being removed or just reframed into the idea of reasonableness being interpreted through flexible circumstances based on the criteria. In the past, we used to have provocation, if I am not mistaken. Has that changed into reasonableness?

Catherine Kane, Director General and Senior General Counsel, Criminal Law Policy Section, Department of Justice Canada: You are correct that in the current law there is a reference to provocation but only in terms of how that plays out in self-defence. It is not the same concept of provocation that would be considered a defence in a charge of murder, which would reduce the murder to manslaughter. That is not the same type of provocation that is in the code now in the self-defence provisions.

As the minister noted, all of those provisions with respect to self-defence, which are many and confusing but which all boil down, basically, to the same principles, have been reduced to one general provision. It does not engage the term provocation. It is covered in the factors and in the reasonableness of the circumstances.

Senator Jaffer: Chair, I do not want to take the minister's time. May I pursue this later on?

Minister, the one thing that I am unhappy with in the bill is proposed paragraph 34(2)(e), which speaks about "the size, age, gender and physical capabilities of the parties to the incident.'' Why do we need to bring in gender and sort of stereotype the acceptable type of response for men and women? It is covered by size, age and physical abilities. Why do we need to bring gender into it?

Mr. Nicholson: It is a not an exhaustive list. Your colleague Senator Fraser just asked me if this helps battered women, and she made a specific reference to that. Again, we know of some of the challenges that people have in this country. Some of the issues that we deal with on a regular basis are murdered, missing Aboriginal women and women who are in relationships that are abusive. All we are saying to the courts is that this is a non- exhaustive list but that they should look at the whole picture as to what is happening in this and take that into consideration when they are deciding what is appropriate or not.

Senator Jaffer: I am happy that you talked about what my colleague also spoke about, the battered wife syndrome. I may be mistaken, but I thought that was very well covered in proposed paragraph 34(2)(f.1), which states "any history of interaction or communication between the parties.'' I felt that was covered there. Why bring in gender stereotypes?

Mr. Nicholson: We are not trying to limit it. Again we wanted this to be as expansive as possible. In the amendment that was made by the House of Commons, they pointed out that there could be an incident between the individuals that comprised just one threat, one communication. It does not have to be an ongoing relationship for a person to either be abused or to find it necessary to protect themselves.

This is why the bill is very clear. This is a non-exhaustive list. Have a look at these considerations when you are deciding if what the person has done is reasonable. That is all we are asking the courts to do.


Senator Boisvenu: Good morning, minister.

Mr. Chair, before putting my question to the minister, I'd like to draw your attention to the presence, before this committee, of a French delegation from an institution for justice. They are in Quebec to look at how our system treats victims of crime. I want to welcome our four French cousins to this committee.

Minister, at the onset, I want to thank you for being committed to defending victims of crime, to defending all victims, and in my opinion, this bill also aims to do so.

Today, my question concerns small business owners who work hard to earn a living and who, too often unfortunately, have to deal with criminals. Sometimes, there are altercations during the perpetration of these wrongful acts and, in some cases, the perpetrator then goes after the owner who, if I may say so, automatically becomes a criminal. This constitutes, in my opinion, a terrible injustice. I would like to know how this bill will make sure that individuals, such as Mr. Chen, who are caught in this kind of catch-22 situation, will be better protected and will no longer be viewed as criminals when they defend themselves?


Mr. Nicholson: Thank you, quite frankly, for all the work you do in standing up for victims. It is appreciated by me and everyone in this Parliament.

This will be welcomed by small shop owners, people who are in the business of selling their property or displaying it in public, because the law as it states now is that unless they stop that individual in the act of stealing right then and there they are precluded basically from getting involved in a direct way at a later time. In the case of Mr. Chen or in circumstances similar to that, where they see the individual or they catch up with him within a reasonable period of time, and it is not feasible to have the police there, the bill addresses issues like that.

It seems to me we are sending a clear message to shop owners that we are on their side. They are the victims when they have property stolen and so a bill like this is directly aimed at better protecting those individuals who are in the legitimate pursuit of protecting their own property. This is own their own livelihood; this is their life.

They are obviously very concerned and interested in this, so this will, I am quite sure, be well received by those individuals that you have described. It is important for us to do this. It is a multi-purpose bill in the sense that we clarify the rules with respect to the defence of property and self-defence, but we make the added provision in the citizen's arrest to make it clear that if they catch up with that individual within a reasonable period of time that a citizen's arrest can be effected. It is important and it is a good piece of legislation.

Again, I thank you and appreciate all the input you have had and all the work you have done on behalf of victims.

Senator Di Nino: Minister, I believe most of us would agree that the first line of defence against crime is the police and I do not believe Bill C-26 impacts that at all. There are many who have suggested that the changes contained in Bill C-26 may encourage vigilantism. What is your response it that, please?

Mr. Nicholson: I have not heard many people suggest that. I think the odd time I may have heard that over the last year or year and a half that I have been involved with that, but most people welcome this and think it is an excellent idea.

As you pointed out, senator, the first line of defence is the police. This is what we would all want and we all encourage, but in the circumstances where that is not feasible, it is not a reasonable option. We empathize with those individuals who are in the business of protecting their property.

The bill, as drafted, as you will see, when you hear witnesses and when you analyze it, is reasonable in every sense. The bill is common sense and it puts us firmly on the side of those individuals who have a legitimate right to protect their property and themselves, for that matter. I have not heard very many people complain that somehow this is going to do anything other than what I and most of my colleagues here believe this bill is intended to do.

I have been very pleased with the response. I have introduced many pieces of legislation and I accept the fact that there are always critics, but it seems to me there are very few in connection with this bill.

Senator Di Nino: In the bill there is some provision of use of force to protect oneself or one's property. That is an area that obviously could lead to circumstances which would not be the desire of the bill. Under what circumstances do you foresee the use of force? How would we be able to, in effect, describe to folks what this bill would do in those circumstances?

Mr. Nicholson: The bill sets out the parameters and finally clarifies the language with respect to both the defence of property and the defence of the individual, and it is the test of reasonableness. We have had a court system that has operated in this country for centuries and it looks at what is reasonable under the circumstances. This bill codifies that. On each fact situation that would be before the police, the Crown, or the courts, again, they would look at what is reasonable under the circumstances under every fact situation. One of the great things about the reasonableness test is that most people subscribe to it, understand it and know it when they see it or when they hear about it and that is the test. We are not overturning jurisprudence in this area, but we are making it straightforward and simpler for all those who have to look at this and apply it.

The bill has certain parameters in terms of the force not being out of proportion to the threat, that sort of thing, but it is a call that would be made in each set of circumstances. The people, among others, who will be very appreciative are the law enforcement agents who initially investigate these. I have had them tell me that it is very complicated when they look at those sections of the Criminal Code. Indeed, on one case I remember a law enforcement agent saying sometimes they just put it into the court and let the court figure it out. We cannot do that. We have to make sure everyone understands what the law of this country is and that it is straightforward and clear so that you are not unnecessarily charging someone that should not be charged because they have to go through the criminal process. Even if you are acquitted, it is a traumatic experience. If someone should not be charged in the first place, we want to make sure that they are not charged in the first place. Having up-to-date language that is a little more recent than 172 years is a move in the right direction.

Senator Joyal: Thank you, Mr. Minister, for your explanation. The bill proposes the concept of "as much force as possible in the circumstances.'' To me, a policeman or trained officer who arrests someone is trained to apply the right force, the measured force, because they are trained with the technique that they master. However, a citizen who is totally new in that context will not, in my opinion, use the same level of force as an officer of the peace or a trained policeman might use because of the knowledge and expertise of that policeman. That is why I understand, and you have said it clearly at the beginning, we invite citizens to first call the police. The police are the best responders in any case similar to the one we are dealing with here.

What will be the interpretation of the reasonable force in the circumstances? The reasonable force in the circumstances of a private citizen is not the same reasonable force as a police officer who is trained and knows how to stop someone from running and so on. A person with a gun who wants to stop someone might shoot anywhere. A police officer will be trained to target the legs or another part of the body. It seems to me there is a level of appreciation there that is a bit on the borderline, if I can use that expression. How will the court interpret reasonable force in the circumstances?

Mr. Nicholson: I have complete confidence that the courts can do that, senator. We have had considerable jurisprudence in this area. The laws with respect to self-defence and defence of property have been a part of our laws certainly since the Criminal Code of this country was initiated and indeed before that in various forms. That being said, the courts are in the best position to make that determination.

You are quite correct that the first line of defence can and should be police officers. They are trained in this area. However, it is a fact that from time to time individuals are called upon to protect themselves, their family members and their property, and it will rest on the facts of each case. That will be determined initially by the law enforcement agents who investigate this as to whether this was reasonable.

As we do in all cases in this country, covering so many different areas, the test of reasonableness is applied, and we rely on our courts to do that. This will continue.

Senator Joyal: How would you interpret new section 34(3) on no defence, especially the last part of the paragraph, which states:

. . . unless the person who commits the act that constitutes the offence believes on reasonable grounds that the other person is acting unlawfully.

What is the nature of that?

Mr. Nicholson: This is consistent with current law, but it sets it out more clearly. We do not want a situation where, for instance, a law enforcement agent serving a warrant is interfered with or attacked — where someone is acting on legal ground. We are saying that if for whatever reason it was reasonable for the individual to believe that the person was acting unlawfully, then we would make provision. We want to ensure that police officers and law enforcement agencies are adequately protected.

Again, this law is just consistent with the law we have in that it protects those acting in the line of duty or in accordance with the law. It is consistent with protecting them. It was important to put that in there to make it clear that when a law enforcement proceeding is taking place on a person, that person does not have the same rights as someone who is not under any sort of legal constraints. We are setting out more clearly the law as it exists.

Senator Joyal: You conclude that the jurisprudence that has been accumulated by the Canadian courts in relation to new sections 34 and 35 still apply to the interpretation of the bill?

Mr. Nicholson: With respect to the sections you are referring to, it is consistent with the current law and just sets it out more clearly.

Senator Baker: Minister, congratulations on all the new legislation. Surely you are setting a record as far as the implementation of legislation is concerned.

Something disturbs me about this proposed legislation, Mr. Minister. Let us go back to the case of Mr. Chen, which you mentioned. Mr. Chen had noticed someone stealing plants from his store and the person got away with it. The next time that person entered the store, Mr. Chen took chase. The provision that presumably addresses this and the provision with which I have a great deal of difficulty is the one that says that the arrest can be made within a reasonable time after the offence is committed. We have two experienced police officers in committee, Senator Dagenais and Senator White, who know that a police officer cannot do that.

Section 495 of the Criminal Code addresses governance arrests by peace officers. They can arrest if they find someone committing a criminal offence. Under that section, a citizen can arrest someone who is in the process of committing an indictable offence. A police officer can arrest someone who, they believe, has committed an indictable offence in the past. They can arrest someone for purposes of exigent circumstances, such as identification and so on. However, they cannot arrest someone for a hybrid offence or an offence under section 553 of the Criminal Code, which is theft and so on, unless they find the person in the commission of the offence. That has been interpreted to mean, "while the offence is taking place.'' For any hybrid offence, a police officer cannot do it. In the case of Mr. Chen, a police officer in the same position who sees someone the next day or the next week and that person is being arrested for a hybrid offence, a warrantless arrest cannot take place under 495 of the Criminal Code — it just cannot take place.

My concern is that unless you are suggesting that police officers can use the citizen's arrest provisions, there is a conflict in this new section that perhaps should be noted. That is in my opinion, and I do not know if you want to comment.

Mr. Nicholson: I will comment on a couple of things.

The two law enforcement veterans that we have on this committee are great guys and great individuals. I am quite sure you will find out in your deliberations that they are completely supportive of these efforts to put better protection and better tools in the hands of the individual. The individuals we are talking about in citizen's arrest are the ones who have been violated — they are the victims in the case. I hope, senator, that when you look at this and you read the provisions with respect to that reasonable period of time for that person who has had this crime inflicted upon them, you will come around and lend us support. As I say, those two law enforcement veterans that you pointed out, will help me to make the case to you. I look forward to your support and thank you for your comments with respect to all the criminal law legislation that I am sure the vast majority of you have completely supported; and so we will go forward.

Senator Fraser: Was that an answer?

Senator Baker: That was a good answer, actually.


Senator Dagenais: Thank you, Mr. minister, and thanks to your colleagues as well for being here. I have listened to you quite attentively. We know that the amendment is also designed to support the police in their work and I imagine that it can help victims as well. Now, there will always be people who raise questions. What should we say to those who claim that the bill's provisions allow citizens to take justice into their own hands without having to wait for the police?


Mr. Nicholson: I would point out to them that there have been provisions with respect to citizen's arrest that go back centuries. This is certainly a modification of the laws that have been a part of this country basically since its inception. I would point out to them as well that we are assisting victims. These people are victims of crime. When someone steals your property, they become victims. We want to do everything we can within reason to assist those individuals.

I would say to them as well that this is a modification of the existing laws as they relate to citizen's arrest. It would take into consideration a citizen who may not apprehend the individual in the exact act of committing the crime, but it may take place after a slightly longer period of time. I would point out to them as well that the first line of defence, which the bill makes clear, is to call the law enforcement agency. That is the first line of defence. That is made very clear in this proposed legislation. That will continue. I would tell them that in those exceptional circumstances or when the circumstances mean it is unreasonable or unfeasible to have a law enforcement agent, they would hopefully be in support of the victim who has had a criminal act inflicted upon them.

I suppose that is what I would say to those individuals.


Senator Chaput: Minister, in concrete terms, what difference will this bill make in the life of a taxi driver who is threatened by his customers in the middle of the night?


Mr. Nicholson: In terms of anyone who is threatened in any area, the law provides that you cannot threaten individuals, inflict harm on individuals or attack individuals. I would point out to those individuals that that is a crime in Canada and that law enforcement agents should be contacted as soon as possible to intervene and to assist. The bill is specific with respect to citizen's arrest.

As I said, these things are inherently dangerous and the provisions with respect to citizen's arrest should be undertaken with all due care. As far as doing what is reasonable to defend yourself, I think that most individuals who analyze this will be glad that this is being clarified. It is important that the law be understood.

I am satisfied that anyone looking at these provisions of the Criminal Code will now understand what they can and cannot do and what protections exist for them. I believe that the existing provisions of the Criminal Code are very complicated and archaic. Everyone will benefit. Individuals who have the legitimate right to defend themselves and their property and get involved with a citizen's arrest will conclude that this is a much-needed clarification that is reasonable in all the circumstances and should be supported.

Senator White: Thank you for being here.

Senator Joyal referred to "as much force as is possible.'' With regard to citizen's arrest, the Criminal Code of Canada now talks about as much force as is necessary, not as is possible. It may be a nuance, but there is a vast difference between the amount of force one can possibly exert and the amount of force that it is necessary to exert.

In the Criminal Code as it now stands it is already a lawful arrest, and with these changes it would still be. When drafting this legislation was any consideration given to including an offence of resisting arrest by a citizen who is lawfully making an arrest?

Mr. Nicholson: When we sat down to put this together, to begin with it was specifically with respect to better protecting the individual who is conducting a citizen's arrest and expanding the time frame in which to do it. There are a number of caveats, as you know; that the police should be notified and that the individual should be turned over to them. We did not go beyond that other than, in order to better protect, to include the defence of property. It is what it is, but that does not mean we close any other door.

Ms. Kane: We acknowledge that one thing can escalate into another. In the early consultations on citizen's arrest we were discussing the fact that if a person resists a citizen's arrest because they do not realize that the citizen has any power to arrest them, or they do so deliberately, it could escalate into a situation of self-defence if they assault the person who is seeking to arrest them. That quickly moves from a situation of citizen's arrest into a self-defence scenario, and sometimes they get quite muddled together in the outcome.

Senator White: I understand defending oneself upon making the arrest if we have determined it is a lawful arrest. Obviously, the police, the Crown and the courts would have to prove that the individual knew they were being placed under lawful arrest. I just think a next level of defence might be another offence of resisting lawful arrest. Today section 270 only refers to the police or public officer; it does not refer to a citizen. I am trying to determine whether it might provide a greater level of defence to the individual as well.

I wondered if it had been considered and pushed aside for any reason.

Senator Unger: My question is supplemental to that of Senator White. If a person is trying to arrest someone who is resisting, you can imagine that a fight will ensue. The citizen who is trying to make the arrest is trying to subdue the perpetrator, so he uses his fists and, depending on his size, and assuming these are two men, delivering a blow to another's head with a fist could potentially be fatal. Would this tie in with what Senator White has just asked?

Mr. Nicholson: One thing that characterizes this bill is that you do what is reasonable under the circumstances, and that applies to all aspects of this. Arresting someone else is inherently dangerous, and it is not something that we encourage individuals to do. That is why there are specific provisions to call the police. That is your first line of defence, because they are trained professionals in this kind of activity.

Again, I caution individuals not to inadvertently get involved in a situation that could result in great harm to everyone involved. This provision should be used with caution, and that is why it is limited to extending the current citizen's arrest provisions in the Criminal Code to cover off those other situations. Again, people have to use considerable caution because these things can escalate out of control, and no one wants that.

Senator Unger: Dealing with proposed section 35, defence of property, assume a situation where someone has "no trespassing'' signs posted everywhere, someone intent on committing a crime climbs over the fence and approaches a dwelling, the homeowner comes out, and a confrontation ensues wherein the "bad guy'' gets seriously hurt. The person has not actually attempted to steal anything, but that appears to be the intent. How would that be dealt with?

Mr. Nicholson: Under section 35, the homeowner would have to believe on reasonable grounds that the person is about to enter or is entering the property without being entitled to do so, is about to take the property, or is about to do damage, destroy or make it inoperative, et cetera.

I do not rule on hypothetical situations. We place these matters into the Criminal Code and they will be determined on the facts of each case.

When I was in law school many years ago we discussed the case of someone having a "no trespassing'' sign and a 20- foot-deep pit to stop people from entering. I think most reasonable people would agree that that is completely unreasonable and unacceptable. Again, our jurisprudence shows that the facts of every case are taken into consideration, and I have complete confidence that will continue. This legislation is consistent with our jurisprudence.

Senator Joyal: Mr. Minister, on the issue of citizen's arrest, how do you reconcile the provisions of section 10(b) of the Charter with citizen's arrest? Senator Baker raised that issue at second reading debate, and it is fundamental. How would you reconcile the implementation of citizen's arrest with the right of anyone who is arrested to be informed promptly of the reason for arrest and to retain counsel without delay?

Mr. Nicholson: One of the provisions is that the individual be turned over as soon as possible to law enforcement agents. We are keenly aware of the rights of all citizens, even those charged and arrested. That will continue. Law enforcement agencies will be called in as soon as possible. This covers the situation. For the most part it is an infrequent situation, where someone in the act of committing a criminal act or within a reasonable period of time has been apprehended by a citizen.

Again, the individual who has been arrested will have all the rights that Canadian citizens have. They will be turned over to law enforcement agents and are entitled to counsel and all the protections that exist under Canadian law. I do not think that is jeopardized or compromised in any way.

Senator Baker: You have not really answered Senator Joyal's question. I can appreciate why you have not answered it in that perhaps the jurisprudence is not in agreement on all these matters. In other words, rights to counsel where it says under 10(b) of the Charter forthwith, which means immediately; given rights to counsel immediately under 10(a) and 10(b). You are saying that the intent of this legislation is that they not be given rights to counsel immediately, but that they be passed over to a police officer immediately so they can be given rights.

Mr. Nicholson: You are interpreting my words. I am saying that I do not believe in any way the rights of an individual are compromised who has been arrested in the act of committing a criminal offence in this country, and that all the laws of this country will continue to apply.

Senator Baker: In other words, under this legislation Mr. Chen would have had to be given his rights to counsel.

Mr. Nicholson: Are you suggesting Mr. Chen should have been provided a lawyer outside his shop? That is a very interesting proposal, senator. I would like to hear more about that, of course. It seems to me that individuals who are protecting themselves and their property — as long as they act reasonably — are provided for. They have the acquiescence and support of the law and this law as it continues in that vein.

Senator Angus: Minister, I was not sure you answered when I asked you this earlier, although you probably intended to. However, for the record — and for Canadian listeners and so on — is it correct to understand that this law is in no way a Canadian version of Florida's "stand your ground'' legislation?

Mr. Nicholson: This is all Canadian from beginning to end, senator. You have my assurances of that. I am sometimes asked how this compares with the laws of Georgia, Louisiana or Illinois. We have jurisprudence that goes back centuries in this country, and we have a criminal law that has been in place since the 1890s. We will build on that from Canadian experience. This is a Canadian law from beginning to end, and it is reasonable, as are all laws in Canadian law in this country.

The Chair: I do not want to keep the witnesses languishing, waiting for members to arrive. We have a number of senators who have already indicated an interest in pursuing these issues with staff.

Senator Fraser: I have three questions, one in connection with the self-defence and the battered wives issue. I understand that the list of criteria in 34(2) is not an exhaustive list and it is not a checklist. It is not something where every one of these has to be met. I understand that the minister pointed to 34(2)(f), in particular, which is the nature, duration and history between the two parties including any prior use of threat or force. That is important in the context of the kinds of cases we are talking about. Then I look at (b), which talks about the extent to which the use of force was imminent and whether there were other means available to respond.

How do you expect those two, which could arguably be in conflict with each other, to play out?

Joanne Klineberg, Senior Counsel, Criminal Law Policy Section, Department of Justice Canada: Both of those factors are derived almost directly from the Lavallee case, which was the leading case from the Supreme Court.

For the first time, the Supreme Court gave an interpretation to the existing self-defence laws such that the situation of the battered woman could be taken into account. Essentially the court said that where battered women's cases had previously not resulted in a successful self-defence plea was because the jury could not appreciate how a reasonable person in that woman's situation would not have left the relationship sooner, or how they might have perceived they were at risk. The most important thing the Supreme Court determined in that case was that whenever there is an aspect of reasonableness in the law of self-defence, it is important to consider the particular circumstances of an abused person — and the nature of their relationship — and attribute that to the reasonable person.

That is essentially what 34(2)(f) is trying to get at; in determining what is reasonable you would have to consider the history of the relationship. Another thing the Supreme Court decided in that case was it had previously been assumed — although it was never in the wording of the Criminal Code — that the imminence of the assault was a necessary precondition for self-defence to be successful. The court in that case said that is an assumption; the paradigm self- defence case is one where it is imminent. However, a battered spouse situation is exactly one where the assault might not be imminent, but nonetheless the person would not reasonably feel themselves taking into account the history to have any option but to do what they did.

The factor that is enumerated as (b) was also specifically designed to reflect that aspect of the Lavallee case, by saying it is a factor to consider, the extent to which the attack was imminent, which in and of itself is meant to signal that imminence is not a requirement. If imminence were a requirement, it would be in 34(1), but because it is in 34(2) as a factor to consider as opposed to a requirement of self-defence, it signals that imminence is a factor to consider and the person's perceptions about other options they might have had is also a factor to consider. I think our view would be that both of those factors are entirely consistent with the reasons of the Supreme Court in Lavallee.

Senator Fraser: I am sure Senator Baker will be very glad to have that on the record. I am very glad to have it on the record, too.

Moving on to citizen's arrest, one of the questions that has been raised by a number of people has to do with the provision that a citizen may arrest a person without a warrant if they find them — I am sorry, grammarian that I am, I still do not like this — if they find them; and "find'' implies immediacy and presence, right? We have been reminded — there was House of Commons committee testimony, among other things — that technology makes it possible to know that someone has committed an offence without being actually present. You can see them on closed circuit television, to pick the most obvious example.

Why would we not have said, since we are rewriting this provision, something like "find or observe,'' allowing for remote but nonetheless pretty well certain knowledge that this person has committed an offence?

Ms. Klineberg: My answer to that question would be that some courts have already held that observing a crime being committed through closed circuit television, for instance, is equivalent to finding committing. There is a court that actually says, obviously, that when the law of citizen's arrest was first enacted, no one contemplated closed circuit television, but the court considered it to be the equivalent of a security guard, for instance, standing and being able to visually observe the person and be in their presence.

The courts do not seem to have had any difficulty extending the existing law with the existing wording to cover those sorts of situations.

Senator Fraser: You figure it is safer to live with that than to start tinkering in part of the code and not in other parts.

Finally, going back to this question of Charter rights, when we think of citizen's arrest we think of someone like Mr. Chen, a small shopkeeper who goes after someone who is shoplifting, but there seems to be a fair sense that what is more likely to happen is that this will be used increasingly, because they are increasingly prevalent, by private security guards. I am wondering whether any consideration was given to requirements that, if you are a security guard — and I think you have to be licensed; it is not just anyone who can masquerade as a security guard — you should be required to inform the person apprehended of that person's rights.

Ms. Klineberg: That was not an issue that was contemplated in the development of the legislation. As it stands already, I think the overwhelming majority of citizen's arrests are made by security officers.

Senator Fraser: It is more so likely to be.

Ms. Klineberg: Yes. There is a fair amount of case law already on the questions that were raised by Senators Joyal and Baker about the application of the Charter in the context of a citizen's arrest. It very much comes down to whether or not on the particular facts of the case the individual — the private citizen making the arrest — is acting as an agent of the state. If they are found to be doing so, in other words, if they had a pre-existing relationship with the police and they were on the lookout for something, then they would really be exercising a public function and the Charter would apply as soon as they would make an arrest, but the courts seem to be telling us that private citizens who make citizen's arrests are really acting in a private capacity, although it looks like a public function. When they act in the moment they are protecting their own interests and so the Charter generally does not apply in those cases unless there are some additional facts that suggest the person was acting deliberately as an agent of the state.

It is an interesting question whether security guards are more akin to protecting the private rights of the person for whom they are employed or whether they are more akin to an agent of the state.

Senator Fraser: It seems to me they stand smack dab in the middle. They are not agents of the state; they are not peace officers; but they are not the private citizens. They are not like Mr. Chen, and as I say, there seem to be more and more and more of them. I am just wondering whether existing jurisprudence has kept up with this or whether we might not have had an opportunity here to say, "Okay, we are modernizing and updating the law and this is one of the elements that could use some modernizing and updating.'' Are you aware of any other jurisdictions that have addressed this?

Ms. Kane: I would only add that I would expect that your committee may be inviting security companies that will indicate how they operate. We had some previous consultations with them and they indicated that they actually work in quite close cooperation with the police in many jurisdictions, particularly in larger cities where security agencies are covering shopping malls and particular business districts and so on. They seem to work in good harmony in most of those situations so that where they would be effecting a citizen's arrest of a thief, they would detain the person for a very brief period of time. They would call the police immediately — that seems to be their standard practice — and the police would then in many cases indicate to the security company that the person should be released and the person would then get a promise to appear, because at the time they do not precisely know what they will be charged with. It would depend on the amount of whatever they stole and so on.

If there is any concern about the rights of the individual, whether or not the issue was resolved about whether the security guard is acting as an agent of the state or as an agent of his employer, quasi-citizen, the rights are minimally impaired. Those are the standards by which the security guards operate. They are licensed, as you have noted. They are fairly well-trained. If they deviate from those guidelines imposed by their employers they will not be employed by the shopping mall or the major retailer or whatever, because they do not want to invite civil lawsuits in addition to other problems.

Senator Jaffer: May I come back to the question that I asked you, Ms. Kane? You were responding about the element of provocation in self-defence. I am looking at 34(1). Is that replacing the defence of provocation?

Ms. Klineberg: No. Wherever the notion of provocation appears in the self-defence provisions, it really bears no relationship at all to the defence of provocation, which is a partial defence for murder.

The function of the idea of provocation in the self-defence provisions is that it distinguishes between two types of self-defence situations. As the minister indicated, largely the reason why self-defence is in need of reform is because there exists three or four separate versions of the law of self-defence, each of which applies in a slightly different set of circumstances, although the underlying principle for each is the same. Two circumstances that are distinguished from each other in relation to self-defence — the basic rule of self-defence is the completely innocent person who is attacked by another, so that is the person who is unlawfully attacked, without having provoked the assault.

Section 35 of the current Criminal Code sets out another version of self-defence for the individual who provokes another person into a confrontation in which the person they have provoked responds with force whereby the initial provoker may then need to use self-defence because of the amount of force that the person they provoked has used. You can see this gets quite complicated.

The only function of the provocation element in the self-defence regime is to distinguish those two types of self- defence from each other. However, when you reduce all of the self-defence rules to one single rule that applies in all the circumstances, there is no need to discuss the element of provocation in relation to the elements of the defence itself. However, it is hinted at as a factor.

Proposed paragraph 34(2)(c) would be the person's role in the incident. That is meant to mean a situation where you might be the person accused and you are claiming self-defence, but if you provoke the other person to hit you first, that could be a factor that the court or jury would consider in determining overall whether your acts were reasonable.

Senator Jaffer: My next question is on proportionality, between the defence of property and the defence of the person. That has been upheld in Canada. I have one difficulty with this bill. Why not sever the provisions of defences of property and the defences of person to better highlight the different standards of reasonableness? There is an issue of proportionality. I feel this gets confused in this legislation.

Ms. Klineberg: As the law is currently written in the Criminal Code, both self-defence and defence of property say that a person can use however much force is reasonable in the circumstances, or no more force than necessary. The same terminology is used in self-defence and defence of property currently, but the courts have been unanimous in Canada — and I believe elsewhere in the Commonwealth world — that intentionally causing the death of a person is never acceptable in defence of property alone, but it clearly is in defence of the person.

That is a firm part of our jurisprudence. Therefore, I think proportionality would probably be roughly equivalent as between self-defence and defence of property up to a certain point. Beyond that point, you could carry on if you needed to in self-defence but not in defence of property.

I think we are fairly confident that the courts are pretty explicit about dealing with those situations. An academic or two might say, "Well, there might be, hypothetically, some scenario, say a proposed attack on critical infrastructure, where causing death in defence of property might be necessary in some circumstances.'' It is always a bit of a trade-off as to whether you would want to expressly articulate that in the law or leave it again as something for the courts to handle, which, they seem to have done up to this point.

Senator Jaffer: From what you are saying, am I to understand that there is a different burden of proof for self- defence than defence of property?

Ms. Klineberg: No. In terms of the burdens of proof in respect of defence, the accused need only put in some evidence capable of raising the defence. Then the burden is always on the Crown to disprove the existence of the defence beyond a reasonable doubt, just as they need to prove the elements of the offence beyond a reasonable doubt. That is consistent across both defences.

Senator Baker: All of the recent cases since 2010 that I know of have judged that the Charter applies to a citizen's arrest. That is of the cases that I know of. I have read of some recent ones that have said exactly that and summarized the law.

If there was any doubt about that, this bill adds a new subsection to the law. That is subsection 494(4). It imports into the law of citizen's arrest section 25 of the Criminal Code. Are you acting as an agent of the state? In that case, section 25 talks about the fact that a police officer can, reasonably, kill someone if they are in the commission of their duties, for instance.

The two sections are now being brought into citizen's arrest. Under section 25, there was an addition; it was not there before but is now there under this bill. Subsection 25(4) says:

A peace officer, and every person lawfully assisting the peace officer, is justified in using force that is intended or is likely to cause death or grievous bodily harm to a person to be arrested . . .

The subsection before that says that:

. . . a person is not justified for the purposes of subsection (1) in using force that is intended or is likely to cause death or grievous bodily harm unless the person believes on reasonable grounds that it is necessary for the self- preservation of the person or the preservation of any one under that person's protection from death or grievous bodily harm.

What was the reason for importing into a citizen's arrest this section of the Criminal Code, which to an impartial observer like me would say, "Well, now for sure you are acting as an agent of the state''? This protects you when you are authorized by law. The headnote in the Criminal Code says "Protection of persons acting under authority.''

That is my observation. If you do not want to comment on it, you do not have to.

Ms. Kane: Senator, the reason for the direct reference to section 25 is to address the issue of what is the amount of force that you can use when effecting a citizen's arrest. The way the private citizen is brought into that is only under subsection 25(1). They are acting under the authority of the law.

They have the authority in subsection 494(2) now, and in the new subsection 492(2), if enacted, to effect the citizen's arrest. The amount of force they are entitled to use in doing that is referred back to subsection 25(1), which is where the private individual comes in. Therefore, they derive the authority from there and it is quite clear that they act on reasonable grounds, they are justified in doing what they are authorized to do, and using as much force as is necessary for that purpose — "as necessary for that purpose.''

It will always be interpreted in terms of what is the amount of force that is "necessary for that purpose.'' It will not be necessary to shoot someone to effect a citizen's arrest of stealing food in a grocery store or anything of that sort.

Senator Baker: It says that, if it is likely to cause death or grievous bodily harm, "unless the person believes on reasonable grounds that it is necessary for the self-preservation of that person.'' That is where the "reasonable grounds'' comes in — if you do kill someone, acting in that authority, if you felt that your self-preservation, or the preservation of anyone under that person's protection, was at stake.

Ms. Kane: That would be a scenario where the situation has escalated from the intention of the owner to simply arrest the person for the theft, which is about property. That is the starting point: It is only with respect to offences about property. That situation escalates and you are then on the receiving end of a potential grievous bodily harm to yourself.

As Ms. Klineberg mentioned, our case law is quite clear that the courts do not authorize grievous bodily harm for defence of property alone. However, defence of self, where the circumstances warrant, could be considered a reasonable response.

Senator Baker: Yes, when are you acting under authority, but that is under this section.

I am sorry about that, Mr. Chair.

Ms. Kane: But you are acting under the authority of the law to make the citizen's arrest in the first place.

Senator Baker: So the point is —

Ms. Kane: Then it turns into another scenario.

Senator Baker: You have added a new section to the Criminal Code under citizen's arrest. That is my point. It is a section of the code that is usually looked at as authorizing; it says the "Protection of persons acting under authority.'' You are acting as an agent of the state.

The Chair: We will have to move on.

Senator Baker: Charter rights are necessary.

The Chair: Perhaps you will have an opportunity to respond later. We have a list of senators who wish to ask questions.

Senator Di Nino: These amendments, as I read them at least, extend the legal authority of citizens to protect themselves or their property.

However, the amendments also clarify or strengthen or change the role of the police officer. It certainly impacts on them with the changes to the sections that have been called "complex,'' "confusing,'' et cetera.

What are the changes in these amendments that have an impact on the police?

Ms. Kane: Correct me if I am not understanding your question appropriately, but we would not say that these provisions are changing the role or responsibilities of police officers.

However, the provisions with respect to self-defence and defence of property are certainly clarifying the law, which may make charging decisions more straightforward for the police and for the Crown who work in conjunction with the police and, in some jurisdictions, who approve charges. They will look at all the circumstances, and, at the earlier stages, they may be in a position to assess whether self-defence or defence of property were at play in those charging decisions. More importantly, where someone is charged with an offence and they assert the defence of self-defence or the defence of property, it will become much simpler for the courts to unravel the criteria that were at play for instructions to the jury and so on.

Senator Di Nino: This is the point I was trying to make, and I do not think we have talked about yet this morning. These changes, although they appear to be minor, would probably allow more discretion on the part of police or on the part of the courts when dealing with some of these things because of the clarifications that have been included in Bill C- 26.

Ms. Kane: With respect to the discretion of the police, we would assume that the police will still lay the charges based on the facts that are uncovered during their investigation and so on. That may not be any different except where, clearly, they are aware that someone acted in self-defence or defence of their property.

I think it would be more likely that it will be in the court situation that this clarity will be more appreciated.

Ms. Klineberg: It is possible that you might see fewer charges laid simply because the police will be in a better position to understand what the law of self-defence is, for instance.

The minister told the anecdote about police officers. They open up the Criminal Code, they have done their investigation, or they have gathered some preliminary evidence, and they do not even know which it is. Is it 34, 35, 36 or 37? They cannot figure out — nor can many lawyers, I think — which of those would be the provisions to apply. It is hard to determine this with thing certainty, but it may be that there is a tendency to lay charges more than is appropriate simply because the matter will come before the courts where all of these technical legal issues can be sorted out. Discretion may be exercised not to lay some charges, where, on the evidence and on the application of a much simpler law, it is clear that the defence would be available, so therefore there would be no prospect of conviction.

Senator Di Nino: You are much more eloquent than I am. Thank you for the answer.

The Chair: Certainly, that was my supposition, too, that this will certainly assist police.

Senator Joyal: I would like to come back to this interpretation of the Charter. It seems to me there is still a grey zone, especially after the interpretation you have given of subsection (4) of section 494, which assimilates the status of a citizen's arrest to one of a peace officer.

If I understand your explanation, let us use the example of a private citizen arresting someone who happens to have done damage to property, for example, during a manifestation. Someone on the street threw a stone in the window; the person is inside; the person goes after the person who has thrown the stone in the window.

If I understand your point, the citizen who makes the arrest has no obligation under the Charter on any aspects of sections 10(a) or 10(b). In other words, the person who makes the arrest does not have to inform immediately the person who is under arrest why that person is arrested, nor does he or she have any obligation to inform that person that he or she can call a lawyer under section 10(b). It seems to me that that goes counter to the interpretation of the Supreme Court, which said clearly in Suberu that the obligation to inform the person promptly — which the court has interpreted as immediately — of the reasons for his or her arrest is to avoid self-incrimination. That is the fundamental reason behind section 10(a). If I arrest a person who has thrown a stone in my window and I do not inform the person why I am arresting him or her, that person could incriminate himself or herself, and then his or her defence under the Charter would be jeopardized.

It seems to me when making a distinction when a person is arrested by a private citizen, it might be three or four hours before the police come. The police are not on the corner of the street. If I use my example again, it is an evening where there is a manifestation, and the police are totally caught by thousands of people. I do not need to give you the political context I am referring to, but it is a real case. Then, of course, it means that a person is no longer protected by the Charter.

In another case of the Supreme Court, in Dombrowski, if you have a telephone available, you have to give the person the right to call immediately. Everyone has a cellular phone these days in his or her pocket.

It seems to me when you sustain what you contend to be an interpretation of sections 10(a) and 10(b) in the case of citizen's arrest, it is, to use a diplomatic word, borderline, in terms of an offender's rights under sections10(a) and 10(b), the way it has been interpreted by the court.

The distinction is, in my opinion, that a citizen with good motives — and I am not disputing that — who arrests another one is not in the position of a police officer or a peace officer, and on that ground, he or she is relieved of any protection of section 10 of the Charter.

I do not say you are not right, but I still think that there is there a very important issue that you might not have had an opportunity to look into, and I think it is a very serious issue, especially if citizen's arrests become ''usual.''

Ms. Kane: The courts have turned their mind to that, and the case law was not crystal clear in terms of the Charter obligations on the citizen. However, as Ms. Klineberg said earlier, where this citizen appeared to be acting as an agent of the state, then the Charter did apply. Where they were acting on their own behalf, other courts have held it did not.

However, in the scenario you described, the requirement in the proposed law is that the person can effect a citizen's arrest where they find the person committing, and there is nothing new about that part, or a reasonable time after, where it is not practicable to engage the police.

If the person has a phone available to call the police, then they would have to do so without delay to say they have arrested someone who has trespassed or damaged their property, and the police officer at the other end would tell them at that point that they are either able to attend to take the perpetrator away or what that person should be doing with the perpetrator they have arrested.

If we will be providing citizens with the capacity to arrest in relation to property, as we do now, it is perhaps expecting too much of the citizen to then offer the person who has violated their property a right to counsel, to call their lawyer, instead of taking it to the next step and turning them over to the police immediately.

There would also be an obligation on the part of the person affecting the arrest to make it known to the person they were arresting. An arrest can be laying your hands on the person or communicating with them verbally to indicate not to go anywhere and to call the police to come and retrieve them.

I am sure the issue of a private citizen affecting an arrest will continue to play out in the courts as to what the obligations are.


Senator Chaput: Perhaps someone has already raised this question, but I'd like to raise it again. According to the bill, anyone, the police, an individual, an owner or even a security guard employed through an agency for example, can arrest someone without a warrant if he or she has reasonable grounds to do so.

At the very beginning of today's meeting, it was mentioned that the bill provided additional protection for victims. Anyone arresting another person without a warrant and without reasonable grounds to do so could be charged. How is this person protected against being charged? Who is protecting this person and in what way?


Ms. Kane: Are you referring to a person who attempts to make the arrest and is then charged?

Senator Chaput: Yes.

Ms. Kane: We are aware that those circumstances have occurred and, ultimately, it gets sorted out during the investigation by the police in terms of what the precipitating act was. Was the person attempting to arrest someone who had stolen their property or damaged their property? The next issue is whether their response was reasonable in the circumstances. If they use violence in the context of that citizen's arrest, was that force necessary in the circumstances? If it was not, sometimes there would be an altercation with the person on the receiving end. They are not easy situations to determine as to who the victim is and who the offender is.

So far, it appears that our courts and the police are generally able to determine when charges should be laid, what the charges should be and who they should be laid against.

Senator White: We are suggesting, initially around security guards in particular, that the courts may at some point determine that because they receive authority under often provincial legislation, that they may be deemed part of the state and they have greater requirements. That is what you are suggesting with respect to a security guard. Is that correct? We do not see anything different here now.

Ms. Klineberg: Right.

Senator White: However, it may change in the future.

Ms. Klineberg: Right.

Senator White: I want to be clear on section 10(a) and (b) because they have been referred to a number of times. There is a difference between them. Section 10(a) talks about "promptly,'' which is immediately, and section 10(b) refers to "without delay.'' In section 10(b), "without delay'' does not mean promptly; it means that the individual does nothing to delay access. There is a difference between the two. One is immediate, but "without delay'' is not actually immediate. Is that not correct?

Ms. Kane: The circumstances always inform the delay aspect. "Without delay'' is sort of what is practicable in the circumstances.

Senator White: With 10(b), impaired driving is probably the greatest test in Canada for that section. The officer may determine that "without delay'' means to get them back to the office, not 40 miles out into the backwoods where they have arrested them and allow them to make a cellphone call. That may not actually be practicable. "Without delay'' means they will get them back to the office and allow them access there. I think a number of cases have identified that. Is that not correct?

Ms. Kane: That is correct.


Senator Dagenais: My question was related to Senator Chaput's question concerning a citizen's risk of being charged. I believe that witnesses have already answered that question. Thank you Mr. Chair. You had the floor before me Madam.


Senator Joyal: I would like to come back to the issue of self-defence. I have a situation in mind that my colleagues, especially from Quebec, will certainly remember.

It is the case of a taxi driver who happens to have five customers in the car. It is eleven o'clock in the evening, and the five people in the car decide they do not want to pay and they start being aggressive with the taxi driver. Some of them get out of the car and start tapping the car, damaging the car. The taxi driver decides to move the car because, of course, he feels threatened and his property is being damaged. He is responsible for the property because he pays for the car and so on. In the course of moving the car to try to flee his aggressors, he hits one of the people and he seriously injures them. He is then charged as a result.

This person was not trying to arrest someone, just trying to save his property and his life, and then he is charged for causing bodily harm to the people he is trying to flee. I do not understand how the Crown in a case such as this would have interpreted section 34 of the Criminal Code.

Why is self-defence in such a case not admissible? In other words, why were the charges laid against that person in the first place?

Ms. Klineberg: I am not really sure that we —

Senator Joyal: There was video taken of the entire incident, so it was not a fabricated story with no proof. There was video taken that shows what happened.

Ms. Klineberg: Everything will come down to the available evidence and the perception of the evidence. The first decision-maker is the police. They will be the ones to gather the evidence, and they will be the first to decide whether a charge is warranted or not.

There may be circumstances where the decision is made, but we cannot tell if it is a correct decision because we do not have enough evidence, or it really should be a judge or jury deciding on the basis of evidence given under oath in a courtroom setting when the full picture is out as to whether or not a defence is available.

As a matter of law, self-defence would not be available on facts like that, but it really depends on the exact nature of the facts and the evidence presented at trial. It would not be until the evidence was presented that it could legally be determined whether or not defences were available, such as self-defence or the defence of property. That determination cannot really be made at the outset because it is dependent on what the evidence is in the case.

As to why charges were laid or whether they should have been laid, I am not sure that is something that we could comment on.

Senator Joyal: I want to come back to the point raised by Senator White. The jurisprudence seems to me to be quite clear that if a person is in the police car and the police says, "We will allow you to call the lawyer when we get to the police station,'' that that is not admissible, that is not rightly proper. The Dombrowski case says:


There is no justification for limiting an accused person's right to counsel without delay when a telephone is readily available. In circumstances such as these, the police cannot wait until they are back at the precinct with the accused to allow him to obtain counsel.


The Chair: We will not open that debate at this point. We will give you an opportunity later.

Senator Baker: Senator White was going to say that through all the years police officers did not do that in their cars because they were not able to supply a secure telephone in private. That is right. However, recent jurisprudence, as Senator Joyal pointed out, says that you must provide at the scene of the arrest.

This has been completely rewarded because of confusion under the existing law. I prefer the existing law, to be quite honest. I have one simple question relating to that. The reason I prefer the existing law is because it reads simpler and it made a distinction between a dwelling house and property. A man's home is his castle. It made a distinction in law. One thing you could not do is trespass on a person's home, on their dwelling house, although you have an invitation to knock, but that is missing from this bill, the word "dwelling house,'' which was used in every single section and is being erased, no longer there.

Did you notice the same thing? Was there any reason for removing the dwelling house and lumping it together, just calling it property with any other property when a great distinction was made under the original sections? I am just looking for an opinion.

Ms. Klineberg: I have other reasons for preferring the present law.

Senator Baker: Of course you do.

Ms. Klineberg: However, I would say that, interestingly enough, although there are currently five separate defence of property provisions which distinguish between moveable property, immovable property, dwelling house property and so on, the test for how much force could be used in defence of either of those types of property in all cases is the same.

In fact, all that there is of value is sort of statutory recognition that there are different types of property, but there was not any greater degree of force that is permissible in the statutory language. More force has been found to be permissible at common law and by the interpretation of these provisions. In other words, the courts have clearly said in a home invasion situation, superficially someone has trespassed upon your home or forcibly entered your home, but the law was still that in defence of property alone the courts will not allow you to use deadly force. The courts say instead in those situations that everyone who is in the home has a reasonable perception that they are at risk, so deadly force, if necessary, can be used, but it is really conceptualized as self-defence.

All of the subtlety that you are referring to is still part of the law. It has always been part of the jurisprudence as opposed to part of the statutory law, so I do not think any of that is lost. Words from the code might be lost, but it was never those words that provided those additional layers of subtlety or additional layers of protection.

The great benefit of Bill C-26 is that instead of there being five provisions now there is only one, and just as many problems arise in a defence of property case as arise in a self-defence case in terms of the courts and counsel struggling to determine which of the five provisions are the ones to apply.

The real problem with the complexity is that, depending on the facts that the jury finds, a different provision would apply, and so the judge does not know what the jury will find the facts to be, and so the judge has to say to the jury, if you find that a person was trying to defend moveable property inside the home, you would apply section 38, or maybe section 39. If you find that the accused was trying to defend the property from being entered, then you might apply these other sections. You have to put all the sections to the jury because any one of them might apply depending on the facts that the jury finds, and that is what leads to appeals, not ever because the jury gets the outcome of the case wrong but because errors are made in instructing the jury. The benefit of this law on the court end of things might well be that we will see far fewer appeals based on errors in jury instructions.

Senator Banks: The only appeal you can make is on instructions to a jury; you cannot appeal the decision of the jury, so it is in the instructions.

I thank you for the answer. You have both done an excellent job here today in giving evidence.

The Chair: Ms. Klineberg, I am not sure how to phrase this, but your clear belief in this legislation has been noted. We thank both of you very much for your appearance here today.

(The committee adjourned.)