Proceedings of the Standing Senate Committee on
Legal and Constitutional Affairs

Issue 19 - Evidence for May 30, 2012

OTTAWA, Wednesday, May 30, 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 4:16 p.m. to give consideration to the bill.

Senator Bob Runciman (Chair) in the chair.


The Chair: The meeting will come to order. A few folks have yet to arrive, but we have a tight timeline this evening, so I would like to get under way.

I would like to welcome our invited guests and members of the public who are viewing today's proceedings of the Standing Senate Committee on Legal and Constitutional Affairs on the CPAC television network.

Today we continue our consideration of Bill C-26, An Act to amend the Criminal Code (citizen's arrest and the defences of property and persons). 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 for further examination. This is our second meeting on the bill, and we will be holding public hearings over the next few weeks as well. 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, I would like to introduce our first panel of witnesses: from the Canadian Police Association, Mr. Tom Stamatakis, President; and from the Canadian Association of Chiefs of Police, Greg Preston, Superintendent, Edmonton Police Service.

Gentlemen and members, we have one hour allocated, and I would urge us all to pay attention to the clock so that we can hopefully have everyone participate.

I understand, Mr. Preston, you will begin with an opening statement. The floor is yours.

Greg Preston, Superintendent, Edmonton Police Service, Canadian Association of Chiefs of Police: As introduced, I will be representing the Canadian Association of Chiefs of Police. Thank you very much for having us here today.

At the outset I would like to indicate that the CACP is in favour of passage of Bill C-26. We feel the bill will improve the provisions such that it will make it easier when members of the police service are dealing with the offence, and it will be streamlined in that it will make it easier for our members to understand and apply when deciding whether someone was properly defending themselves or property or whether charges should be laid.

In relation to powers of arrest, our preference is that police take on that priority and responsibility. We have that. Our preference is that, where possible, police officers make the arrest. We are properly trained and equipped. However, we recognize there are situations where members of the public will react and seek out individuals who appear to be committing crime and intervene. As such, we support the amendments in relation to the powers of arrest recognizing the reality that individuals, where appropriate, will move forward and make arrests. I think the biggest thing we recognize is that they still have to act reasonably.

There is one aspect of the bill that might be worthy of some consideration that is not covered currently — at least that is the perception of the CACP. That is it in relation to 494(2) dealing with property owners and agents where the bill still speaks of "finds committing.'' The backgrounder to the bill describes "finds committing'' as being caught in the act. One thing we have noticed is an ever increasing use of CCTV, especially in store situations. Loss prevention officers are monitoring their businesses, watching through CCTV, and they observe what would appear to be criminal activity, and they will use phones to get a hold of another loss prevention officer that is down on the floor, as they say, and communicate their observations. It is the floor loss prevention officer that then acts, and it is based on what they have been told, not seen. They have backed off. If they are sitting there watching what is going on, the person might observe that, and quite often the individual committing the crime is somewhat leery to anyone being around.

The person who is acting on the floor is really acting off of what someone else has told them. I would submit that is based on reasonable and probable grounds, not "finds committing.'' This is a common occurrence across the country where loss prevention officers are acting in that fashion. It may be argued that the crime is ongoing and therefore they are still technically "finds committing.'' I would suggest that is not the case. Really they are dealing with reasonable grounds scenario. I take my guidance from the Supreme Court decision in Biron — and the citation is there as well as the page number — that really we are operating off reasonable grounds and not "finds committing.'' I do raise this not because I am here to advocate on behalf of loss prevention officers. However, given that 494(3) of the Criminal Code mandates that an individual who is arrested by a citizen must forthwith deliver that person to the police. We are responsible to come in, take over that arrest and move forward with it. We are also the agencies responsible to investigate allegations that someone acted without authority in relation to the original arrest, in essence, if someone is alleging the loss prevention officer did not have authority. It is something we want to raise, to identify there is a potential issue here. Given the way that society and technology has changed, that might be something worthy of consideration by this committee.

Other than that I would like to again say that the CACP supports passage of Bill C-26, and I will answer any questions you may have.

The Chair: Thank you very much.

Tom Stamatakis, President, Canadian Police Association: I appreciate the opportunity to present to your committee today. For those of you who are not familiar with the Canadian Police Association, we represent approximately 53,000 police personnel across Canada. We are the national voice for front line police officers. Our officers, our members serve in about 160 police services across Canada, and they are in Canada's smallest towns, villages, as well as those working in our largest municipal and provincial police services, as well as RCMP members, railway police and First Nations police.

Again, I would thank you for having me here today to speak with you with regard to Bill C-26.

The Canadian Police Association is generally supportive of Bill C-26 as it helps clarify some of the situations where private citizens acting in defence of themselves or their property might be appropriate. However, citizens are not trained in areas such as the proper use of force and methods of detention as law enforcement personnel are. It is of the utmost importance that the public be educated that despite the changes in Bill C-26 and the changes that the bill brings about, a citizen's first reaction to witnessing a crime should be calling the police, as it is the law enforcement personnel who have been entrusted with the task and responsibility of preserving the public peace.

It is important to note that before Bill C-26 was originally introduced in the last Parliament as the former Bill C-60, the Minister of Justice and his department consulted extensively with our association and other law enforcement stakeholders to ensure that our concerns were respected in this legislation. We appreciate their efforts to reach out in that regard. As always, we look forward to any opportunity for further cooperation whenever it is possible.

Police officers have undergone an extensive amount of training that continues long after being hired. Training focuses on protecting the public, who are being victimized by those who engage in criminal activities, as well as protecting the offenders and ensuring that they be detained in a manner respectful of their civil liberties. Officers are trained with the necessary skills to be able to handle the worst-case scenarios.

Police officers are also held accountable by civilian oversight. This is an essential component to law enforcement that private security lacks. Civilian oversight is used to ensure that law enforcement uses their authority in a manner reflective of the law and of civilians' rights and freedoms. This monitoring of police activities hold each police service accountable for the conduct of its officers, the services they provide and the policies law enforcement professionals operate under.

We should also take care that any changes made within this legislation do not have the unintended consequence of broadening the current mandate of private security, particularly with respect to loss prevention in commercial settings. While I am sympathetic towards storeowners and businesses that wish to minimize losses with respect to the very real concern of shoplifting, we must take care not to go too far in the pursuit of protecting property. It can be tempting to believe that all shoplifters are teenagers committing a crime of opportunity, but factors such as the presence of accomplices, or even in the worst cases gang affiliation, can lead to increased personal danger for private security personnel who try and affect an arrest. We definitely do not want to see a situation where a citizen's arrest is made only to find the suspect's friend or accomplices return for a measure of retribution.

With the technology available today law enforcement are now able to identify people and successfully investigate those who are involved in crimes ranging from the most minor property crime offences to the most serious offences involving personal harm against other persons. Properties can now easily be monitored by quality video devices, and this alone can alleviate risk to the public and security personnel and allow for law enforcement to do their jobs in arresting those who commit crimes.

In summary, we hope to avoid all indications or implications that citizens acting in defence of themselves or of their property are a replacement for professional law enforcement personnel. As I stated before, we are supportive of Bill C- 26. Our main concern is the safety of those who protect and those whom we have sworn to protect.

I am grateful to be here today and address you all, and I welcome any questions that you might have.

The Chair: Thank you both. We will begin our questioning with the deputy chair of the committee, Senator Fraser.

Senator Fraser: Thank you both for being here and for making interesting presentations. You both raised issues that we have tried to focus in on at committee.

Could I ask you, Mr. Preston, to expand a bit on the difficulties with the CCTV and third-party observation? We asked the people from the Department of Justice about CCTV, but I think I was the first one to raise it. I was actually asking about first-party observation through CCTV, if you see what I mean. If I see on my closed circuit television someone doing something wrong, does that count as finding the person if I go down and do a citizen's arrest? The answer was basically yes, that there was jurisprudence to that effect. You raise a more pertinent point, which is when someone else sees it.

What do the police do when you get a call and someone has made a citizen's arrest, maybe a security guard, probably at this point, and that person was not the person who saw the crime being committed? What do or can the police do when they arrive on the scene on that circumstance?

Mr. Preston: We can still take the arrest over. One of the things we have to look at is are we continuing their arrest, which raises the issue that I was commenting on about if we are continuing with their actual arrest there is a concern that we are continuing a potentially unlawful arrest.

When we arrive, if we are given the full details of what happened, unlike a citizen, we have greater powers, and we can operate off of reasonable and probable grounds. I can, on that basis, make the arrest.

Senator Fraser: On the basis that a witness has told you that?

Mr. Preston: The witness has told me what they saw, and therefore I can now act on that basis.

It is not necessarily that we are without authority to move forward with it; it is how we move forward with it that potentially raises the concern. As well, there is still the underlying fact of what the Loss Prevention Officers do. They are all done in good faith. The concern, of course, is good faith does not cover you if the law does not say you can do it. That is an issue to address in another forum.

In short, it is not that we are completely without authority. We just have to operate in a different fashion. That assumes that all the front-end police officers understand the fine rules that we are discussing today.

Senator Fraser: Do you think they do?

Mr. Preston: No.

Senator Fraser: Mr. Stamatakis, on the matter of security guards, do you think this bill will have the effect of increasing the number of citizen's arrests conducted by security guards?

Mr. Stamatakis: Yes.

Senator Fraser: Why?

Mr. Stamatakis: I think it gives the security guards the authority to go further than they have been able to before.

Senator Fraser: That seems to me like a reasonable reading.

I want to go to your point about training and understanding of the law. In the experience of your members, are security guards, as a broad class, properly trained? Is there a wide variance in the training they receive? This is not a field with which I am familiar, and I need all the information I can get to understand it.

Mr. Stamatakis: I would say there is a wide variance. In some cases, security guards receive more training and actually understand what their role is and execute their responsibilities very appropriately. In other cases, they are not as well trained and often take steps that I would argue they are not legally authorized to take with respect to detaining citizens in certain circumstances.

Senator Fraser: Can you give me an example?

Mr. Stamatakis: One very good example that I would provide is I will use my experience in Vancouver with what is called an ambassador's program, which is essentially a business improvement association-driven initiative where they have retained the services of a private security company and their personnel to conduct certain kinds of activities in the downtown business district of Vancouver. It has been very contentious because, although they have a specific role with respect to assisting the business improvement association members with persons in their premises that are not desirable or are engaging in illegal activities like shoplifting, they have gone further and are starting to require people to move away from what are public spaces and, in some cases, they are detaining people in those public spaces to ask questions, to search and to ask them what their identity is. That is why I said earlier that while we support the bill, we need to be sure that we are still relying on the properly trained and accountable public police to engage in policing activities while still allowing shop keepers and owners, through the private security personnel that they retain to assist them, to be able to take appropriate action when it makes sense to do so.

Senator Fraser: Do I have time for a quick supplementary here? No. I can tell the chair is looking patient. I will come for a second round, if I may.

Senator Di Nino: Welcome, gentlemen. It is good to have you here to increase our knowledge and understanding of these issues. As my esteemed colleague, Senator Fraser, said, we are not experts in these areas, so we need you to come and tell us whether we are going right or wrong.

The first comment I would make in the form of a question is that I think you would agree that there are really not sufficient police officers to be able to deal with the number of petty instances of criminality that happen across particularly a metropolitan city like Toronto, Vancouver or Montreal. Would you agree with that?

Mr. Stamatakis: Yes, I would. There is a significant capacity issue in policing in this country today, for sure.

Senator Di Nino: The bill was intended, at least to some degree, to cover that absence of sufficient police officers.

The issues that you raise — I was going to say Sergeant Preston, but that is not the case. Superintendent Preston.

Mr. Preston: It is all the same.

Senator Di Nino: I am sure you have had to deal with that many times.

You talked about cases where closed circuit televisions are being used and the difference between "finds committing'' and "reasonable grounds.'' When a crime is being committed, tell me how that impacts the action of either a police officer and/or the owner of a property or in many cases someone who the owner has retained. How is that different? If you have either one or both, would you not still have the right to act?

Mr. Preston: Again, it depends on the facts in the sense of whether it is personal knowledge or it is something that is being acquired elsewhere. When we speak of "finds committing'' — and I am not a legal jurist — the Supreme Court gave us significant guidance. It speaks of "finds committing'' in Biron. It talks about his power to arrest is based upon his own observation. That is the finds committing component. Whether it is a police officer or a loss prevention officer, if they see it, if it is their senses before them, based on their own observation or senses, then I would say it is the same. They would be able to act. It is where you are not acting on what you are seeing but relying on others to help you form the basis of deciding whether or not you have reasonable grounds. Therefore, you are not acting on finds committing but on the threshold of reasonable grounds. That is where there is a divergence in the law. Police officers under 495 have greater authority than a citizen under 494. I am not sure if I answered your question, senator.

Senator Di Nino: Yes. Let us assume that the police officer is not there and you have a security guard. He or she could act under either one of those two categories to, in effect, detain?

Mr. Preston: No, not on the reasonable grounds parts. They do not have the same authority to act on reasonable grounds that a police officer has. That is where it diverges.

Mr. Stamatakis: To put it in plain terms, the security guard basically has to see the person committing the offence. The police officer can arrest and detain if someone else gives them a sufficient amount of information where they can form the reasonable grounds.

Senator Di Nino: If there is a security guard at a jewelry store and the employee says, "That man running over there just stole a watch,'' he cannot act?

Mr. Preston: Arguably not.

Mr. Stamatakis: Arguably not. The way the law sits today, no.

Mr. Preston: The only way around that would be if the person who had the watch stolen was chasing them, and then the fresh pursuit doctrine kicks in, which is in the first subsection of 494.

Senator Di Nino: Thank you. That is good explanation.

Mr. Stamatakis, you talked about the responsibility being first and foremost with the police. I think you will agree that the bill recognizes this and that it stresses this on several occasions. That is not a point of disagreement. I think we are all really saying the same thing; am I correct?

Mr. Stamatakis: Yes.

Senator Di Nino: Thank you for that. You also talk about the education of the public and that the police should be engaged as soon as possible. Do you have any ideas or thoughts you can share with us regarding how that should be done?

Mr. Stamatakis: There are a number of ways of doing it. The main message was that we ought not to be leaving the public with the impression with this bill that there is no longer a requirement to engage the police in whatever issue they might be dealing with. From my perspective, the idea would be "Look, the bill gives you some additional opportunities to take some action, but as soon as it is practical, you need to still phone 911, have a police officer attend the scene and gain control of that situation, and follow through in a manner appropriate within the context of the law in this country.''

Senator Di Nino: I would see that is relatively easy with organizations from which you hire security guards — with individuals. However, it will be a tougher job to educate the general public that they have a responsibility. However, certainly you are suggesting that would be one of the requirements of the government in ensuring, to the degree that it is possible, an education forum.

The Chair: We need to move on.

Senator Baker: Let me put it to you straight: I believe that this bill gives an ordinary citizen a power to arrest that a police officer does not have. If you look at section 495, you have the power to arrest somebody who has committed an indictable offence, or somebody who is in the process of committing a criminal offence, which could be hybrid or it could be summary in nature. However, you do not have the authority under section 495 to arrest somebody for a summary conviction offence or a hybrid offence after the fact, unless you catch them during the commission of that offence.

That is the way the courts have interpreted section 495. In fact, that section says explicitly in those very words that a police officer does not have the authority to arrest somebody who has committed an offence that is regarded as being hybrid or summary. That is what it says, exactly.

Yet this bill now gives the citizen the right to make an arrest while it is being committed but also "they make the arrest within a reasonable time after the offence is committed.''

Unless we decide to put that same authority in section 495, we are giving the citizen a right to arrest that you do not have as police officers.

Mr. Preston: I might be misunderstanding, but I believe section 495 comments that:

(1) A peace officer may arrest without warrant

(a) a person who has committed an indictable offence or who, on reasonable grounds, he believes has committed. . . .

Senator Baker: Continue on. You are not permitted to arrest somebody who has committed a hybrid offence.

Mr. Preston: Are we in paragraph 495(1)(a) or subsection 495(2)? Subsection 495(2) is a different aspect. That has to do with whether the criteria for the arrest, which are commonly called the RICE conditions — repetition of offence, identity, attendance in court, destruction of evidence issues. The authority to arrest does exist in paragraph 495(1)(a) but there are caveats.

I apologize for using that prior acronym, but with the conditions in subsection 495(2), often you will not know that because, if you do not know who you are dealing with, you have the authority to act. It is only going into a situation that you had all the factors that are enumerated in subsection 495(2) addressed would you then have a situation where you are precluded from making the arrest, under section 495. We as police officers can still act under section 494.

Senator Baker: Superintendent, the words are, and I am quoting from paragraph 495(2)(b):

(2) A peace officer shall not arrest a person without warrant for

(b) an offence for which the person may be prosecuted by indictment or for which he is punishable on summary conviction

That means a hybrid offence.

Mr. Preston: Correct.

Senator Baker: You are not permitted without a warrant to arrest such a person. That is what it says in clear English, and that has been adjudicated by many courts. I will give you the citation of Dobrotic, Court of Appeal of New Brunswick. You are probably familiar with the case. It spells it out specifically.

Under this bill we are passing, a citizen can make an arrest.

Mr. Preston: With respect, I have to say that I am not sure I would necessarily completely agree with the situation.

Senator Baker: Do you see what I am talking about?

Mr. Preston: I do, but paragraph 495(2)(b) is couched on condition of paragraph (d). Paragraph (b) identifies the offence and then (d) kicks it in. Therefore, so you have to say a peace officer shall not arrest without warrant somebody in (b) "in any case where.'' Now (d) sets out the circumstances you have to consider for the offence identified above.

The factors in paragraph 495(2)(d) are what is commonly referred to by police as the RICE criteria. If you tick them all off, I would agree with you 100 per cent: If a police officer going into a situation had all of these factors ticked off, subsection 495(2) is applicable and therefore an arrest cannot be made.

However, going into a situation, you cannot tick them all off in the vast majority of situations.

Senator Baker: Why would you support a bill that gives a citizen a greater right to arrest than you do?

Mr. Stamatakis: With greatest of respect, senator, I am not sure I agree with you that such is the case in this bill. As a front line police officer, and to echo some of the comments that the superintendent made, we will not know all those things when we are going into a situation. We have the authority to arrest in circumstances where we have reasonable grounds to believe that offence was committed. Therefore, it will be after when you go through the criteria.

I do not believe that this bill does give citizens greater powers of arrest than a police officer.

Senator Angus: I want to go further into the grounds that Senator Fraser was raising with you, Superintendent Preston. You told us to look at the scenario where one of the security officers is upstairs with the camera and then there is another one. You told the House of Commons the same thing in February.

What do you recommend we do? This bill is designed to clarify the law and ensure that anomalies are removed and clarity is given. If there is an ambiguity here, I guess you are suggesting we should make an amendment and that is great. What do you suggest we say?

Mr. Preston: As mentioned, police are not on every street corner. There are resourcing issues, so we recognize there is a point where we have to say citizens will act. Where is that line? At the meeting that was held by Justice, the Law Reform Commission I believe many years ago suggested that anyone "may arrest without warrant a person who he or she believes on reasonable grounds is committing or has just committed a criminal offence.''

It is similar to what is currently before you. Recognize that it is even more expansive than what is before you. I know there is hesitation about expanding powers to the citizens, and I support the comments of the CPA in that there is always risk when citizens intervene. There are risks whenever anybody intervenes. The difference is that we have training and systems on our belt to help us with that and citizens do not. The reality is that citizens will act, and that is why we are in support of it.

However, we still see a potential gap. We pointed out that we know technology advances more quickly than the law, so it is something to consider now that we are having these discussions. That is why I raised it. That would be a fix.

Senator Angus: That thing from the Law Reform Commission that you read out?

Mr. Preston: I may be wrong on where it came from but, if I recall, at the end of our discussions, that was something that most of the room was comfortable saying. If you are going to try to fix this situation, this also would also alleviate the concern that the average citizen distinguishes between a summary conviction offence and a hybrid offence or an indictable offence. For example, if I hear something at nighttime and look into my neighbour's backyard, and in her backyard there is someone skulking around, can I do something? If we go straight on the law, trespass by night is a straight summary conviction offence. What is my authority? The average person thinks the neighbour has someone skulking in her backyard so they might go and do something about it. Instinctively, that seems correct. Legally, I suggest they might be in peril.

Senator Angus: To summarize, you support the bill as drafted, but you feel there could be some false arrests or bad situations arising if we do not amend this particular section.

Mr. Preston: It is certainly a concern given the realities of the way that most large businesses operate in centres today. It is just the way technology is. Let us be honest. It is a lot cheaper to have a CCTV camera set up on every floor than having a loss prevention officer on every floor. The reality is that is what is happening.

Senator Angus: To be absolutely clear, because I think you are so polite, neither of you agree, if I believe my own notes, with Senator Baker that you are giving the citizen more power than you all have yourselves with this bill.

Mr. Stamatakis: I did not have the Criminal Code in front of me and all that, but no, I do not agree.

Senator Angus: Superintendent Preston, the same?

Mr. Preston: I would agree.

Senator Jaffer: I was interested when you spoke about the training that a police officer receives. One of the things that is concerning me about this bill, and you may not agree with me either, is that the way I understand, in your training, you are taught what is a summary, hybrid and indictable offence. Here, the citizen can only arrest if there is an indictable offence. Is that correct? Is that not what proposed section 494 says?

Mr. Preston: That is what 494(1) says. It speaks of any person may arrest where they find committing an indictable offence, but when you move to 494(2), you have finds committing a criminal offence on or in relation to property, so it is a criminal offence. It is more expansive in that section. Depending on who you are or where you are, you might have greater authority. The average citizen can arrest under 494(1) for finds committing an indictable offence. There is a greater expansion when you are dealing with persons in relation to the property.

Senator Jaffer: I am just talking about persons, not property.

Mr. Preston: The average person can only arrest on indictable or finds committing.

Senator Jaffer: That is the challenge. How does an average person know the difference between a summary offence and an indictable offence?

Mr. Preston: Yes. That was one of the concerns I highlighted in my previous example. I agree with you.

Senator Jaffer: Could I ask you to look at Bill C-26 and proposed section 34(2)(e) where it talks about reasonable in the circumstances, taking into account the size, age, gender, physical capabilities of the parties to the incident. If you are charging somebody, have you in the past taken gender into account? I have never seen — and perhaps I am wrong — gender being included. How would you go about that? If the person is a woman, would you charge them differently? Can you explain to me how you would implement this paragraph (e)?

Mr. Preston: I will be very honest. I was quite surprised to see that listed.

Senator Jaffer: It is bothering me.

Mr. Preston: I thought of size and age, and physical capability was added, but those are all relevant considerations. By itself, I am not sure how gender would assist. I am just thinking from a front-line perspective when I give advice, when I was on the front line. Gender by itself really should not be a consideration, by itself. It is the other aspects that one looks at.

Senator Jaffer: Thank you.


Senator Dagenais: I want to say hello to our two witnesses. Of course, I want to say hello to Mr. Stamatakis — a friend and a colleague — with whom I had the pleasure of working at the Canadian Police Association.

I heard you talk about private security and, clearly, I understand your concern regarding private security agencies' powers of arrest. If I have grasped your point of view correctly, your concern is that, at some point, security agents could replace police officers and go beyond the legal limits of their work.

Would you agree that we should limit the power of security officers or their field of activity, their jurisdiction?


Mr. Stamatakis: From the perspective of my organization and the members that I represent, I think it is very important to not only define the powers and the authorities of security guards but also to create appropriate standards with respect to training and introduce some measure of accountability in terms of what happens when things go wrong.

There is clearly a role for private security in Canada with respect to protection of property, and particularly when private interests are at play. We have seen that occur in this country for quite some time. However, as private security proliferates in the country, there is more and more of a need to very much define what their authorities are and what their role is and to create standards with respect to training and some mechanisms for ensuring that the appropriate level of accountability is in place, which are all things that exist for the highly trained, professional, public police officers that work on the front line in this country.

The Chair: I have a supplementary on that. Ontario has legislation in place dealing with this.

Mr. Stamatakis: Several provinces have now pretty good legislation in place with respect to that. I do not know that they all do yet. British Columbia has it.

The Chair: You are still expressing concern. You mentioned the specific issue in Vancouver.

Mr. Stamatakis: It might be that what is missing is the accountability piece. You are still talking about private companies, for the most part. They are profit driven. If you do not define what the appropriate role is for private security in terms of public safety in this country, then it becomes very easy to lose out on that accountability piece. If something goes wrong, if an average Canadian's protected rights are stepped all over, then there is some way of that person having an opportunity to follow up and say, "What happened to me was wrong,'' and we need to make sure that does not happen again.

Senator Joyal: I would like to come back to the brief that Mr. Stamatakis circulated. You also mentioned the same point in your brief, Mr. Preston.

On page 2, I will read the middle paragraph to ensure that we all have it in mind:

Training focuses on protecting the public or being victimized by those who engage in criminal activities as well as protecting the offenders and making sure that they be detained in a manner respectful of their civil liberties.

I think that you alluded to the same point in your brief, Mr. Preston.

Considering that you said there is a proliferation of security guards and security companies, when a person is arrested by a "private citizen,'' be it a private citizen or a private security guard, who takes care of the rights of the presumed offender he or she is entitled to under the protection of section 10 of the Charter? Section 10 states:

Everyone has the right on arrest or detention

(a) to be informed promptly of the reasons therefor . . .

If you catch someone who is committing a crime, you do not have the time to say, "I arrest you because you do this or do that.'' You just try to maintain the person physically. When you arrive on the crime scene, what do you do? Do you take it as if it was you who made the first arrest because you come as a second intervention? There has already been an intervention. What do you do with the person who has been under arrest to protect the rights of that person against self-incrimination, which is a Charter right? That is properly referred to in our brief.

Mr. Stamatakis: That is why we made the reference in the brief. We do have the training and the obligation to protect those rights. In answer to the second part of your question, when we arrive at a scene and take over someone who has been detained by a citizen or private security guard, we would act as though that person has not been informed of their section 10 rights and treat the matter as though we are starting from that point.

In fairness to private citizens, though, I must say that, for most of them, once they detain someone or prevent someone from leaving after they have committed an offence, they are not typically then starting to investigate the circumstances around the offence. Typically, that would be what the police would do.

I am not sure that the same sort of jeopardy exists for an offender when they are detained by a private citizen or a private security guard versus when the police arrest or detain someone where we will now engage in an investigation to satisfy whatever elements need to be satisfied of whatever offence was committed.

Senator Joyal: Are you aware if private security companies train their personnel how to arrest someone on a "crime scene'' or committing a crime once they have seen it on a video or on the floor somewhere in a large store, for instance, or even in any kind of store? Are they trained to inform the person they arrest of their rights under section 10 of the Charter? That could run into Charter challenges. If the person self-incriminates, they could challenge the charge on that basis, that they did not enjoy the protection of the Charter.

Mr. Stamatakis: In my experience as a front-line officer, it varies, again. In some cases the security guards will advise or inform whoever they are arresting or detaining that they have these rights; in other cases they will not. In terms of any risk to a potential charge, generally speaking — and I will look for Superintendent Preston to comment as well — our investigation begins when we arrive at the scene and take over the scene. We will rely on the information that another person may give us to form our reasonable grounds for engaging in whatever investigation we will engage in, but we do it in a manner that recognizes that the offender has rights and we need to respect those rights.

Senator Joyal: Whatever the time lapse has been between the moment you arrive on-scene and the moment the person has been "arrested?''

Mr. Stamatakis: Yes, if we wanted to rely on self-incriminating statements that were made over that period of time before we arrived on-scene, we would have to go through a number of steps. Essentially, you would have to almost get the offender to repeat the comments to you again after you informed them of their section 10 rights. That is a simple way of describing it.


Senator Boisvenu: Thank you very much for sharing your expertise. I have two issues to discuss with you.

In 2008-09, Quebec adopted Bill 84, which regulates the work of companies involved in private security — surveillance equipment installation — companies that hire guards. You said earlier that the issue was training, which was very random in terms of quality. Do you think that Quebec passing Bill 84, which regulates security officer training and makes it mandatory to investigate their past, may help in using this bill a bit more intelligently?


Mr. Stamatakis: Part of the problem, if I understand your question correctly, is you run into the conflict that sometimes arises when you are dealing with federal legislation and then where the jurisdiction for administering something falls to the provinces. One of the potential conflicts is that we have Bill C-26, but the responsibility for regulating falls to the province. Unless there is consensus or agreement around what the federal legislation means and how it should be followed through on between the federal and provincial governments, then potentially there could be a problem.

Senator Boisvenu: Does that mean we should standardize the way those companies or security agents should act in the field?


Second, over the past 20 years, many municipal police agencies have been abolished in Quebec. SQ now takes care of provincial operations and is on site, in rural areas. Municipalities basically subcontract SQ to do what had previously been done by municipal police. One of the most common criticisms in those municipalities concerns the time Sûreté du Québec takes to respond to petty crimes. They react differently depending on the crime, as it is often a matter of conjugal violence, a break-in or something similar. A line is drawn, and they have an hour to respond to a break-in. However, in the case of a murder, the response time is 10 minutes. People do not get a quick police response when they live in the country and their home is broken into.

Could this be a tool to provide citizens with some safety — to give them the opportunity to get involved and protect their goods — while not allowing them to chase after the offender or criminal who is often spotted? Canadians defend themselves, and they end up being sued by the criminal because they may have grabbed them too tightly or pinned them to the floor. Does the bill provide security to citizens who often do not have access to quality police services?


Mr. Stamatakis: All police agencies, whether you are talking about a provincial or a municipal police force, struggle with resources and the ability to respond to the demands the public make on us for service. Frankly, we all have to prioritize how we respond to certain calls. Of the highest priority are those calls where a person is at some risk. I would argue that across this country, whether you are with the federal police force or provincial or municipal police forces, we will all respond as quickly as we can to those types of calls where someone is at personal risk of serious injury or harm or even death. I know for a fact that that is a priority for every police organization across this country.

After that, in policing we are all in the same boat. That is why, in other forums, part of what we are requesting is a robust discussion around how we sustain appropriate funding for policing at all levels in this country so that we can respond to crime, particularly those crimes that put people at risk, in a way that Canadians expect from their police forces across the country.

Beyond that, it is a resource issue. Whether it is the municipalities that are in those policing contracts with the provincial force or the municipalities that are funding their own police departments, they have to make decisions around prioritizing the allocation of the revenues that they take in from the taxpayer. That is what it comes down to.

The Chair: One way that could improve the situation, at least in terms of public confidence, is for more police officers to get out of their cars. Street patrols are almost a thing of the past in many communities, and keeping in touch and being confident in having a police officer walking the beat, if you will, would, I think, avoid a lot of the situations, certainly the one that was the catalyst for this legislation. In any event, that has been my experience with this issue.

Senator White: Thank you for being here, guys.

In relation to oversight, I want to be clear about the concerns you raised earlier when it comes to private security. In those circumstances, there is still the opportunity for the attending police officer to engage in an investigation in relation to an unlawful arrest that resulted in assault, unlawful confinement and other things. You are really referring to oversight like the B.C. police complaints oversight body, whatever it is. In Ontario, it is the SIU or others. You are not saying that no action could be taken by the attending police officer.

Mr. Stamatakis: That is correct. We absolutely do engage in those investigations where it is appropriate to do so.

Senator White: In fact, that happens today, so it is not like it would be new for us.

Mr. Stamatakis: No.

Senator White: Thank you.


Senator Chaput: Here is my question. Is a citizen who, without a warrant, arrests the person they find committing an offence really protected if the case goes to court? Does this bill protect people who have to act honestly, but may be taken to court afterwards?


Mr. Preston: I want to make sure I got the question right. I apologize if I got it wrong.

Assuming they act within the four corners of what the law requires — that they have reasonable grounds that an indictable offence was committed — if, later on, it shows that there was a mistake of fact, they are protected. It is where they did not have the authority — the law does not afford them the authority — that they run the risk.


Senator Chaput: Who will inform them of what the legislation contains? How will they know what the legislation contains so that they can protect themselves?


Mr. Stamatakis: Citizens act now. If people are in their homes or running their businesses and someone comes into their businesses to steal something or is in their homes threatening them, citizens act now; they have always acted.

Senator Chaput: I understand.

Mr. Stamatakis: As Mr. Preston said, as long as how they are acting is reasonable and what they do after they engage with whoever it is is reasonable, then they are protected. Even if they make a mistake, provided that they are acting in good faith and that what they do is seen to be reasonable within the context of the law in this country, then they are protected. It is when they are not acting reasonably, when the force they are using is excessive or when their actions are arbitrary and not supported by the circumstances that they are at some risk.


Senator Chaput: So there are some cases where citizens already do that. What you are saying is that this bill provides them with some security when it comes to the action they will have to take?


Mr. Stamatakis: No.

Senator Chaput: What is the difference?

Mr. Stamatakis: I would have to review the bill again more carefully. It is not so much the bill. In terms of the law, you are entitled to defend yourself and to defend your property, provided that you do so in a manner that is consistent with what the legislation says that you can do.

The Chair: I am afraid we will have to wrap it up there.

Senator Chaput: Fair enough. Thank you.

The Chair: We could go on for some period of time. Thank you, gentlemen.

Our second panel this evening incudes Paul Calarco, a member of the Canadian Bar Association; Rick Woodburn, President of the Canadian Association of Crown Counsel; and Marilou Reeve with Legislation and Law Reform, also the Canadian Bar Association.

Welcome. I gather Ms. Reeve will begin. You have the floor.

Marilou Reeve, Staff Lawyer, Legislation and Law Reform, Canadian Bar Association: Good afternoon. On behalf of the Canadian Bar Association, I want to thank you for the invitation to appear before the committee today to discuss our submission on Bill C-26.

The Canadian Bar Association is a national association representing 37,000 jurists across Canada. Among the association's primary objectives are seeking improvement in the law and the administration of justice. It is with this objective in mind that we address you today.

CBA's written submission, which you have received, was prepared by members of the National Criminal Justice Section. The section members are criminal law experts, including a balance of prosecutors and defence lawyers from across Canada.

I will now introduce our spokesperson, Mr. Calarco, to you. Mr. Calarco brings a personal perspective to today's proceedings, which encompasses his experience as both a defence lawyer and as a prosecutor. He is a practising criminal lawyer in Toronto but has also served as a part-time assistant Crown attorney for Ontario, as well as serving as a standing agent for the Attorney General of Canada for six years, prosecuting drug cases in both the provincial and superior courts.

I now turn to Mr. Calarco.

Paul J. Calarco, Member, Canadian Bar Association: Honourable senators, self-defence and the defence of property is an area of law that is long overdue for reform. The Canadian Bar Association welcomes the initiative to clarify the law in this area. However, this bill suffers, in our view, from fundamental flaws that make it inappropriate to proceed with.

One of the most fundamental principles of our criminal law is that a person must commit a guilty act and have a guilty mind in perpetrating that act. A person who does a physical act that violates the law but has no accompanying criminal intent is not to be found guilty of an offence. This principle protects the morally innocent.

This bill fails to pay sufficient heed to this most basic principle. By determining that the belief of the accused person in defending his or her person, another person or one's property be based on reasonable grounds and that acts committed be reasonable in the circumstances, this bill risks criminal condemnation of the morally innocent. In order to correct this, the proposed legislation must instead require that a person honestly believe in the existence of a set of circumstances that would justify the use of force and that the force used is reasonable in the circumstances as perceived by the accused.

This proposal would in no way extend the defence to those who do not deserve it, as the reasonableness of the accused's belief is always relevant to its honesty, and the honesty of the belief is subject to testing through the trial process. The better administration of justice and the protection of the innocent require that the bill be amended.

The citizen's arrest provision in this bill is also flawed. It has been stated that the idea of the amendment is to allow property holders such as shopkeepers to protect their property. The bill goes much further than that and, in doing so, risks the encouragement of unlawful arrests by untrained citizens, puts the physical safety of property holders and others at risk and creates significant legal uncertainty.

This bill allows untrained persons to arrest others within a reasonable time of a criminal offence committed in relation to property. This is a wide-ranging power and may be superior to that given to police officers.

The phrase "in relation to,'' which is in the present legislation and is maintained, does not limit an arrest to an offence on the premises of a store, for example, but would likely include an offence which has some effect on the property or even its value. A reasonable time is undefined and it is subject to misinterpretation. Combining these two proposals is not desirable. One does not wish to put the safety of shopkeepers or any Canadian at risk, and one does not want to create uncertainty in the administration of the law. The citizen's arrest provision in this bill does that.

While self-defence and the defence of property require clarification, the provisions of the bill are not appropriate and the citizen's arrest provisions are counterproductive. It is our submission that the bill should not proceed in its present form.

Rick Woodburn, President, Canadian Association of Crown Counsel: Honourable senators, I am with the Canadian Association of Crown Counsel, the association that represents the Crown attorneys and the civil Crown all across the country, including the federal Crown attorneys in the civil side. There are about 6,000-plus members across the country, front line Crown attorneys and front line civil lawyers who work for government and so forth.

I am replacing Jamie Chaffe, who some of you may know from a few weeks ago. He brought me in here and dropped me at the table.

If you are watching, thank you very much, Mr. Chaffe.

I would like to extend my gratitude to the committee for allowing me to speak here today and give our views on Bill C-10. Senator White mentioned that my tie was funny — "adventurous'' is the word he used. I thought I would wear it because although I might get laughs; I might keep everybody awake with it. If you are falling asleep, look directly at the tie. It takes you off what I am saying.

It is important to note that our mandate is not to comment on the validity of the legislation itself. Just like the people around this table, each of our members has a wide range of views about the validity of the legislation itself. It is best left to others to comment about the validity of the bill itself. We are here to talk about the effect on front-line prosecutors and civil lawyers across the country.

As a front line prosecutor, I can say that the law surrounding self-defence is extremely difficult to understand. I have applied it to everything from assaults all the way up to homicide and have done everything in between, and it has been applied in various circumstances by many prosecutors across the country. It is very difficult. It has been interpreted, as the Honourable Mr. Nicholson said the other day, probably for about 170 years in its present form. Our belief is that it took that long to figure out what it meant. It has been interpreted in several cases, Lavallee and cases like that, cases that deal with the most miniscule of self-defence arguments all the way up to some of the most important that we have talked about. When we look at it, the law itself has been used and interpreted by the courts.

What you are thinking of introducing is a new law. It is a little different in the Crown's respectful submission. When Bill C-10 came in, we were looking at changing mandatory minimums, so we had a law in place. An assault causing bodily harm: mandatory minimum goes in. For drug offences, mandatory minimum came in.

In this particular case, you are changing the landscape of a defence that is used on a regular basis. It is something that will totally change the legal field. It will be used and interpreted in different ways by various judges, prosecutors and defence lawyers.

I listened to the lively debate. Not only did I hear the debate here today but I listened to the evidence from May 17. I had the opportunity to review it. I noticed that Senator Jaffer was posing some questions about constitutionality and proportionality, and Senator Baker on its constitutionality. Of course, there was lively debate today with regard to it.

Without making comment, those are the things that will be argued in a courtroom. I am not here to stay that Senator Baker is right or wrong. Those are arguments that can be put forward and are litigated because they are unclear. They are unclear to people like you who are in the know about the law and have had an opportunity to review it.

Senator Di Nino commented on the impact on the police, and other pertinent issues. We talked about self-defence and cab drivers. There was a case I dealt with earlier this week with a cab driver and some fares jumping out. What does he do? What are his rights there? He was going to get out. What happened when he got out? He was assaulted and left on the ground. Luckily, there was a CTV camera there to catch what happened and the two perpetrators were eventually arrested.

These are all things we look regarding self-defence and what a citizen will do after they read this.

Once again, it is not our mandate to go back and forth. However, I can say that the question that has not been asked, in our respectful opinion, is where the resources will come from in order to ensure this goes through. As it stands now, we work in an overburdened justice system. There was a lot of discussion this morning about shoplifters. I can say I spend about one minute on shoplifters because that is all the time I have. On Monday morning, I had 15 witnesses for two assaults causing bodily harm. I had half an hour to talk to them. Everything else gets triaged; it just goes out. We debate about shoplifting, but when it actually comes to our courthouses, we do not have the time or the person- power to deal with it.

I am not talking about us being paid enough. I am talking about having enough people to support this system. That includes having enough police; we talked about police. We talked about courts, judges and magistrates. They are overburdened all across the country.

It is interesting because we triage what we consider less important files, and it is not because we are hard hearted. It is because we have to. We move on to more serious and high profile files. I mean "more serious'' in quotation marks.

The phrase "justice for all'' will be "justice for victims of murder, rape and robbery'' because that is all we will have time for.

We see a trend even now — and we have spoken about it — where prosecutors have to give up their time on bigger files in order to get into courts because there are not enough bodies.

A senior prosecutor from a very highly populated area who will remain unnamed had this quote: "Anything short of bodily harm is essentially triaged out of the system. This means financial crimes, property crimes and impaired driving. The most violence short of a hospital visit results in very meaningless consequences.'' In other words, you have to be heading to the hospital before they are able to look at it. "The Criminal Code is shortened to such that the resources can only be dedicated to the most serious crimes.''

It is important to note, also, that while the provincial and federal Departments of Justice struggle to put their finger in the dike, it slowly bleeds money from other resources; for example, the civil side. For the federal prosecutors on the civil side, there have been layoff notices for 100 civil lawyers. These are lawyers that defend lawsuits, lawyers that give opinions on Aboriginal matters, lawyers that write this legislation, and some of them are the ones who translate it correctly into French, which is not an easy task.

In our view, this is a change in an existing infrastructure that we cannot manage. We still do not know what the implications of Bill C-10 are for us. I can see it slowly coming in. This follows quickly on the heels of — and we are changing wholesale — a defence that is used on a daily basis across Canada.

It is like that game Jenga that kids play with blocks, where you pull one out of the bottom and put it on the top. You keep doing that and it eventually falls over. In our view, that is what is happening here. We do not have the resources to mandate for this bill.

Thank you. I appreciate the time.

Senator Fraser: Might I ask, Mr. Woodburn, where in the country you personally practice?

Mr. Woodburn: Halifax, Nova Scotia.

Senator Fraser: I wondered if you might be from B.C. because we have had examples of judges speaking out in the strongest possible terms about the overburdened court system. However, I guess that is not the only place where the problem exists.

I would like you to expand a little on the degree to which this bill, if adopted as is, will change the landscape as dramatically as all that. In what ways will your specific job change, become more complicated, take longer or whatever? I mean apart from the obvious point you did make — namely, that every time there is a new law in, there will follow as night to the day a series of legal challenges by defence lawyers — what will this bill do?

Mr. Woodburn: With any change comes litigation. That is the simplest answer. I can tell you, senator, that I have a bit of a handle on self-defence, as do my colleagues, the defence bar and the judges. It is very difficult.

When you change that, uncertainty appears. For example, earlier in the week, somebody told me "I will run this because of self-defence.'' I said, "That will not fly. I know why and here is the case.'' I cannot say that anymore.

I am not sure what will happen. I am not trying to be overly dramatic. I can honestly say I have been through it and I am not sure how some of this applies.

Senator Fraser: Can you give me an example of something that is changing that creates uncertainty in your mind about how the courts will rule?

Mr. Woodburn: There is talk of lack of predictability. I can give you an example, though I do not want to appear to say we are on one side or the other.

Senator Fraser: No, no.

Mr. Woodburn: For example, when you look at the enumerated factors, when they are interpreted, it appears that we are making a list. Senator Jaffer pointed out "Why is gender in there?'' When you make a list in the Criminal Code, it is followed. Then when it says, "such other things,'' what happens then? That means a lot of other stuff gets in there; whatever the imagination can think of. Believe me, we have be brilliant legal minds in this country that can think of almost anything. My colleagues and I sat down and reviewed this and tried to go through and think of the possibilities. We could not and that kind of scared us.

Senator Fraser: As we have been told, you do not think this is simplifying, clarifying and making the law easier to apply in self-defence.

Mr. Woodburn: I can tell you that if you fill a room full of lawyers and you take a comma out of one piece of legislation and move it into another part, that is a problem.

When you change wholesale a defence that is used on a daily basis across the country, it is easy to predict what will happen. I can give more examples but I am not sure if the chair will allow the time.

Senator Fraser: The chair will not let me eat up any more time.

Mr. Woodburn: I do have more examples.

Senator Fraser: You can submit them in writing to the clerk.

Mr. Woodburn: I apologize for not submitting them in writing beforehand.

Senator Di Nino: Can I continue briefly? You witnesses are very important to us.

One of the comments that we have heard frequently and from a wide variety of sources is that the previous legislation was very complex and was, in parts, confusing. This bill, Bill C-26, has in effect eliminated some of that complexity and confusion. Are you saying you disagree with this wide body of opinion that we have?

Mr. Woodburn: I am not disagreeing or agreeing with the wide body of opinion. I cannot disagree or agree with what individuals like Mr. Calarco said because our mandate is not to do that.

The legislation around self-defence is complex. There is no denying that. When you read it, it is complex, but it has been figured out. It took 170 years to do it, but it is figured out. We have cases like Cinous, Lavallee and others like those to aid us in how to apply it. I applied it very recently in a homicide. I knew exactly what I was doing and the defence lawyer knew what was going on. We made our arguments based on the enumerated grounds in Cinous.

Is that case still valid? I do not know. Will it be re-litigated? Yes, it will. This will all be re-litigated, which will take time and court time, because that is where it will happen. Also, cases where we used to be sure about the law, we no longer can be sure about the law. Therefore, it will have to be litigated. That will increase court time and people's defence lawyers will say they are not sure how it will come out. How can they tell their clients they do not know, so they should plead guilty? They are not.

Senator Di Nino: Obviously, you are disagreeing but that is another issue.

Mr. Calarco, we heard from the previous witnesses, the CPA and CACP. One of the comments made was that these acts are going to happen. They are happening now where, under the laws of the country, there is some ability for citizens who have been offended by an act against themselves or their property to go after the citizen's arrest. This particular bill is giving them a little more leeway in the sense of allowing them to do that and still get better protection from the laws.

Would you think that interpretation is wrong?

Mr. Calarco: I do not believe there is any need to change the current section 494. I believe that the proposal not only creates legal uncertainty but risks the safety of, for example, the shopkeeper. You then have a situation under the proposed legislation where a person may make an arrest within a reasonable time, which is not defined.

To take an obvious example, a shopkeeper, who may have unquestionably been the victim of an offence, believes that the person who returns to the store two days later committed the offence. He then attempts to the arrest that person. The shopkeeper is wrong. The shopkeeper is then acting illegally in attempting to effect the arrest, but has misused the proposed legislation by saying, "I can do this within a reasonable time.''

The longer the time frame, the greater danger of the shopkeeper making an error, no matter how well intentioned, thus effecting an illegal arrest. It also increases the danger to a shopkeeper.

It is much more likely that a person would resist a shopkeeper than a uniformed police officer. A uniformed police officer, as the previous witnesses indicated, is trained. They know how to deescalate situations, and the uniform carries a lot of weight. The police officers should be the front line and shopkeepers should be relying on them as much as possible.

Senator Di Nino: Bill C-26 does stress clearly that whatever possible and as soon as possible the job belongs to the police forces of our country. It envisions that. To quote one of the comments I think you made: Subject to interpretation. Obviously, all laws are subject to interpretation. I am not sure that this "reasonable length of time'' or some other concerns that they would have are not better in the hands of the judiciary in the sense of allowing them to look at the whole picture and decide that, under the circumstances, this was a just and right action to take.

Mr. Calarco: One has to be very careful, senator. Where you are dealing with the initial act of the shopkeeper — and I will use the shopkeeper as an example again — that person is immediately thinking "reasonable time.'' The judiciary will have to interpret that, but you do not want the shopkeeper to expose himself or herself to danger. In passing legislation, one wants as much certitude as possible. That simply is not the case here when we are dealing with these ill- defined terms.

When we look at the proposed amendment under paragraph 495(2)(b), the shopkeeper believes on reasonable grounds that it is not feasible in the circumstances for a peace officer to make the arrest. Again, that is a very ill-defined term.

While I understand the bill may strive for this clarity, unfortunately, it does not meet that goal.

The Chair: We will have to move on.

Senator Jaffer: There are so many questions. I will start with you, Mr. Woodburn.

As you can see, I am very confused. I do not know about Nova Scotia, but in my province, before a charge is laid, the prosecutor has to approve the charge. Therefore, if you look at gender, when you have someone in front of you with a self-defence charge, you will be looking at, "Oh, she is a woman, so the charges will be different.'' Have you ever had that situation before?

Mr. Woodburn: Our mandate is not to talk about the legislation itself. If you want personal experience, I can talk about that.

In reality, in charging, especially in cross-charges on domestics — I know people at home are cringing right now — sometimes the male is considered dominant just because of gender, and that is a reality.

As to the reasons why it is in this legislation, I will leave that to better people.

Senator Jaffer: You talked about Lavallee, a decision I am familiar with. Do you think that paragraph 34(2)(f) will change that? Is that what you were trying to imply?

Mr. Woodburn: I abstain. I do not have that choice but I decided to do it anyways.

Senator Jaffer: Mr. Calarco, the first thing you learn in law are actus reus and mens rea. Are you saying that this legislation will affect actus reus? When you are looking at whether an offence has been committed, you are looking at whether there was an actus reus or mens rea. Is that what you were saying?

Mr. Calarco: The actus reus is not affected; the mens rea is certainly affected because this bill gives predominance to reasonable grounds, so the objective is emphasized at the expense of the subjective. The defences that should be available to a person are lessened in this legislation.

Senator Jaffer: Another concern that I have is that police officers are trained. They know the difference between summary, hybrid and indictable. This legislation, section 494 of the Code, says that it will only be indictable offences for which a citizen can make arrests. How does the citizen know what kind of offence it is?

Mr. Woodburn: I am not really sure a lot of times. It is funny to say that, but when you look at a hybrid offence or a straight indictable offence, we are all looking at our code sometimes. Depending on what you are catching them doing, it would be difficult.

Senator Jaffer: I understood from the minister — and my colleagues can correct me if I am wrong — this was trying to simplify and make it clear for citizens and for the people who enforce the law.

It is not simple for a citizen to know whether something is an indictable, hybrid or summary offence, and I am really concerned about that.

Mr. Calarco: There is great concern. I think it is impossible for the citizen to know, and you also have to distinguish between 494(1) and (2). Subsection 2 permits the arrest without warrant of a person found committing a criminal offence on or in relation to the property. A criminal offence is wider than an indictable or a hybrid offence, as the case may be.

This can create a great deal of confusion; there is no question in my mind about that.

Senator Jaffer: When the minister was before us about this list that they set in the act, he said that it was a non- exhaustive list, so there can be other things added to it.


Senator Dagenais: I want to thank the witnesses. My question is for Mr. Woodburn.

I have listened to you carefully. Do you not feel that the bill as such could make our justice system work better? It would provide us with a less ambiguous piece of legislation that would allow people to stop criminals caught in the act and, of course, the police could solve crimes more quickly as a result. Improved legislation could help avoid longer investigations into finding the perpetrator of a crime.


Mr. Woodburn: That is a good question. I can give an example where, some years ago, the drinking and driving law was changed to remove a defence commonly known as the Carter defence. That change was made to facilitate courts moving faster and eliminating a defence or a loophole that they thought was there as far as drinking and driving goes.

Because they removed the Carter defence, our brilliant legal minds across the country — and I am not being facetious; these are very smart people — have come up with another defence whereby they are directly attacking the machine. Now, we have gone from a Carter defence that can take half a day of trial to having experts talking about the machine itself, how it works and whether it was used properly, which can take days. I have had those.

When we see a change in legislation to something like self-defence, which is just a part of our justice system like our skin is a part of our body, something drastic will happen. There will be litigation. I cannot go through the legislation itself, line by line, and tell you why, but just because it is shorter does not mean it is simpler. I apologize if I cannot fully answer your question, but I can at least give a glowing example of how things will increase.

Senator Baker: I would like to congratulate the three witnesses for their excellent presentations. When you look at Westlaw or Carswell, Mr. Calarco and Mr. Woodburn have quite a history there. Mr. Calarco is up to about 200 reported cases now, so he has dealt with practically every case you can think of.

I will not ask them to give a judgment to determine whether or not I was right or the police officers were right. Something that bothers me is that I believe, from just looking at it and being on legal committees for the last 43 years here on Parliament Hill, that the citizen is being given an authority to arrest, as you point out, Mr. Calarco, a reasonable time after the actual commission or after the person sees it taking place. A police officer cannot make a warrantless arrest. They cannot walk into somebody's house after a summary conviction offence has taken place and arrest somebody warrantless because section 495 of the Criminal Code says that they cannot do that. It will now enable a citizen to do it under section 494.

The other thing that really stands out in my mind — and it came to me when you were talking about this — is "a reasonable time after,'' from an eyewitness account or eyewitness memory. As I recall, the Law Reform Commission of Canada, many years ago — back in 1982 or 1983 — determined in subsequent court judgments that eyewitness evidence is inherently unreliable. We would now put into legislation an authority to arrest based on something that had occurred in the past based on an eyewitness account.

I am wondering why you think this is being brought in. Normally, when a change is brought into legislation, it is usually because of a determination by a court, usually the Supreme Court of Canada. What case is it that caused the government to bring in this particular measure? If it is the Chen case, he was found innocent.

Mr. Calarco: I certainly would not attempt to speak for the ministry as to precisely what drove them and members of Parliament to support the legislation. Certainly, Chen does arise from Toronto, and I am somewhat familiar with that case. Mr. Chen, as you pointed out, senator, was acquitted under the existing law.

That is part of the reason why I see no need to change the existing law.

As to the second point you were making in regard to summary offences, if we take an example, perhaps "cause disturbance'' under section 175 of the code, under the proposed legislation, the private citizen could affect an arrest for causing a disturbance in relation to property, because their next door neighbour was unduly noisy or kids were playing their radios too loud outside their house, a day, two days or more afterward. It leads to a great deal of uncertainty and not to the sort of orderly conduct that is important. That is something much better left to police officers.

Senator Baker: The words, "a reasonable time'' are heavily litigated under section 11(b) of the Charter. "To be tried within a reasonable time'' are the exact words that are there, and that has been judged to be a very complicated procedure with inherent problems within the court system — Crown attorneys not available and so on. According to the Crown Attorneys' Association, that will get worse.

Does that assist at all in defining a reasonable time? I do not know of it in any legislation that is heavily litigated.

Mr. Calarco: I do not think that the 11(b) right of trial within a reasonable time would help because you are dealing with such a different situation, months later, depending on the complexity of the case, and even years later.

Senator Baker: Drug cases can be years later.

Mr. Calarco: Sure, that certainly could be. I think we will be dealing with a much narrower time frame but still a very indefinite time frame.

If I could deal with the other part of your question, sir, regarding the reliability of eye witness identification, inherently unreliable. Courts have stated that over and over and over again. Wrongful convictions based on well- meaning but wrong eyewitness identification, unfortunately, are far too frequent in our country.

Senator Joyal: I am happy to follow up on Senator Baker's question because I want to raise an issue that he raised with the previous witnesses and which Mr. Calarco alluded to in his opening statement. Senator Baker commented that this bill would give power to the private citizens that the police would not enjoy in making some arrests.

Did you hear the previous witnesses?

Mr. Calarco: I did, senator.

Senator Joyal: They were representatives from the police forces. Can you expand more on your opinion on that which runs contrary to the previous witnesses and are more in sync with what Senator Baker contended in his question?

Mr. Calarco: Certainly, sir. The main difference is the interpretation of sections 494 and 495. Under section 495, there are specific limitations on the police officer's ability to arrest. That comes in section 495(2). For example, a peace officer shall not arrest a person without warrant for an indictable offence under section 553, the absolute jurisdiction of the provincial judge offences or hybrid offences or summary conviction offences under certain circumstances. The private citizen is not restricted under section 494 with the limitations under section 495(2), so I have to disagree with the previous witnesses.

I know that Senator Baker was not asking for an endorsement of his views or not, but my interpretation of the law is in accordance with Senator Baker.

Senator Joyal: On page 4 of this bill it says:

(2) Section 494 of the Act is amended by adding the following after subsection (3):

(4) for greater certainty a person who is authorized to make an arrest under this section is a person who is authorized by law to do so for the purposes of section 25.

That is essentially what you contend extends the power to private citizens that a police officer would not enjoy under the Criminal Code.

Mr. Calarco: Under section 25, sir, is protection of persons acting under authority. This says whatever you are doing is you are deemed to be acting under protection. That certainly provides some protection. The question is whether it is appropriate to extend that protection and will it limit the ability of the wrongly arrested person to recourse through the courts. That is a complicated area. I do not pretend to have the answer to all of that at this moment.

However, when we are dealing with the so-called citizen's arrest and the police arrest and various types of offences, there is no simple answer, no final solution on that.

Senator Joyal: This is an additional factor to your own brief and recommendation contending that, in fact, expanding the mandate of private officers or ordinary citizens to make arrests should be avoided in the Criminal Code as much as possible?

Mr. Calarco: Yes, sir. As the previous witnesses indicated, it is much better to have a police officer dealing with this situation. There is no question that police officers are better trained at it. As a citizen, I would much prefer to have a well-trained police officer deal with these issues than an untrained private citizen.

Senator Joyal: However, what is your position with the security guards? We heard also from the previous witnesses about the expansion of the use of security guards to make arrests on a so-called crime scene where they have not seen what has gone on but have been told by someone watching a television set that there is someone with a red hat and blue jacket and jeans that has been shoplifting in one area of the store. The security guard on the floor was not there and did not see anything and then they are trying to see among all the customers who the person is that they should be "arresting.''

Mr. Calarco: I think that is a very dangerous area. I do not believe that the observer through closed circuit television, for example, has the power to radio down to someone else and tell someone else to effect that arrest. That does not mean it does not happen continually, especially in large centres and with large stores, in my city, for example, Toronto.

Senator Joyal: You, therefore, contend that that arrest could be challenged, be illegal?

Mr. Calarco: Absolutely.

Senator Joyal: On which ground would you challenge it, to inform us more broadly about your position?

Mr. Calarco: Well, the arrest, per se, would be illegal because it is not an arrest within the scope of section 494. However, whether or not you can then fashion a remedy is the issue as to whether or not, for example, if a person was found to have contraband on them, that contraband could be excluded. Certainly an unlawful arrest would have ramifications. The extent of them for the charge is one thing where it is affected by a private citizen. The extent where it is effected by a state agent may be something else. Either way, you are going to have extensive litigation with regard to those, and you may have civil consequences as well.

Senator White: I was going to suggest that I thought the legislation was reasonable until you spoke, Mr. Calarco. However, on that, the word "reasonable'' it is actually found in the Criminal Code 279 times for a reason because in Canada we like to say that our legislation is reasonable.

I guess I am trying to figure out what you would suggest you would say instead of "reasonable time,'' understanding that our Criminal Code continuously uses that terminology so that the courts have an opportunity to judge based on reasonableness.

Mr. Calarco: Reasonable will depend on the situation, senator.

Senator White: Okay.

Mr. Calarco: In this situation, our view is that the citizen's arrest provision should not be changed and should not include that "reasonable time'' because it does endanger or run the risk of wrongful arrests. It can lead to less security, actually, for shopkeepers, and it is better to have peace officers dealing with that.

Senator White: However, if I may, there is certainly an inferred reasonableness around citizens' lawful authority to make an arrest today. There is a level of reasonableness expected as well from citizens, that they do not use force that is more than reasonable, for example.

Mr. Calarco: I agree with you, sir, but the use of reasonable force in effecting the arrest is a different issue than, for example, a reasonable time. As we said earlier, reasonable depends on the circumstances.

Senator White: I guess the next piece is mens rea is to be measured by the courts, not by the police. When the police make an arrest they do not map out whether or not the offender had mens rea when they make the arrest. They might make that decision on laying a charge or they may make that decision in court in convicting someone, but the arresting officer seldom, if ever, uses mens rea to determine whether or not to effect an arrest, I would argue, so why would we suggest that mens rea would have an impact on a citizen making an arrest?

Mr. Calarco: It is not so much a question of mens rea on the citizen making the arrest. It is a question of whether or not the citizen has the lawful authority to do that.

Senator White: The authority in the first place.

Mr. Calarco: Those are different issues, in my mind.

Senator Angus: Thank you for all your input here. I am slightly confused. I want to ensure I understand.

As Minister Nicholson said, the current legislation has been around forever. I do not know where 170 years comes from. That takes us to 1842. You said it has taken that much time to develop a set of jurisprudence and guidelines so that all the players have a good understanding of what it means and it is applied in an even way across the system when and if citizen's arrest situations arise. Basically what you have said is to leave well enough alone because it is working well.

If it is true that this is strictly driven by the Chen case in which a private citizen was victimized, and every television station in the nation portrayed it in lurid terms, and ends up being the victim of not only the crime but the accused in a prosecution, what went wrong? If the law was okay before, how come the guy gets charged? I am assuming that he did not catch him in the act. He came back the next day, et cetera. What could be done to remedy that injustice? The masses' general view was that that was an injustice. He should not have been arrested, having had his store trashed and so on. How can we fix that?

Mr. Woodburn: I can talk from a resource point of view. I will be brief, because I do not want to sound like somebody going over the same ground again and again.

Senator Angus: I do not want to get into the resource thing. Is it a fine point that we are trying to fix? I understood that is what it was. We had to amend the citizen's arrest law, that part of Bill C-26, to avoid that kind of injustice. If I am right, is there another way to do it? Forget about whether we have enough judges and prosecutors. We hear that every day here. We do not, and we have to fix it.

Mr. Calarco: Mr. Chen took action the next day. There were grounds to believe that he was not finding the person committing the act. He was, however, as we all know, acquitted, and at least part of the basis of that was the presiding judge thought this was a continuing offence in this particular case.

As I understand it, Mr. Chen took quite extensive actions to confine the person, so he was held for quite a number of hours. Some reports indicated that Mr. Chen tied the man up. While I understand on one level how upset Mr. Chen was, we all have to obey the law, and use of excessive force is not acceptable.

Senator Angus: However, the other guy did not get arrested.

Mr. Calarco: He would have been charged with theft, but if Mr. Chen or storekeeper X said, "Oh, that is the person who broke my window yesterday,'' and comes out and hits him with a tire iron, that is not acceptable. We do not want people taking the law into their own hands, using excessive force or endangering themselves.

Senator Angus: Do you think this remedy now being proposed in Bill C-26 will lead to more of that kind of thing? I think that is your testimony.

Mr. Calarco: Unfortunately, I believe there is a strong likelihood of that.

Senator Angus: I reread the excellent brief from the CBA, of which I am a member. I am not on the criminal side, but it is a very persuasive document. Thank you.

Senator Baker: On a very short point, a question that Senator Joyal had asked of the minister: Senator Joyal asked if he thought the Canadian Charter of Rights and Freedoms applied in the case of a citizen's arrest, that is, section 10(a) and section 10(b), rights to counsel, within the meaning of section 10(a) and (b). The minister suggested that it did not apply as far as the citizen's arrest is concerned. I am wondering if you have any opinion on whether or not 10(a) and 10 (b) apply in the case of a citizen's arrest.

Mr. Woodburn: It depends on how long you have them tied up for.

Mr. Calarco: In my view, it does not. The Supreme Court, in the Buhay decision dealing with the section 8 argument, held that investigation by private security officers at a bus terminal did not engage section 8. It was only when the police came on that section 8 was engaged. I believe that would be consistent throughout, and under section 32 of the Charter it would not apply to private security personnel.

Senator Baker: Have you have heard of Lerke from the Alberta Court of Appeal?

Mr. Calarco: I am familiar with the Lerke case. I do not think it can survive Buhay.

The Chair: Thank you, senators, and thank you, witnesses. I appreciate your being here this evening.

(The committee adjourned.)