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
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 parl.gc.ca website. You can find more
information on the schedule of witnesses on the website under "Senate
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
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
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
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
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
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
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
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
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
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
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
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
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
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
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
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
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
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
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''
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
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
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
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
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
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
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
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
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
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
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
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
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
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
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
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.)