THE STANDING SENATE COMMITTEE ON LEGAL AND CONSTITUTIONAL AFFAIRS

EVIDENCE


OTTAWA, Thursday, May 31, 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 10:30 a.m. to give consideration to the bill.

Senator Bob Runciman (Chair) in the chair.

[English]

The Chair: Welcome, everyone, including 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, dealing with 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 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.

This is our third meeting on the bill. To begin our hearings today I would like to introduce our first panel of witnesses. Michael Spratt is a representative of the Criminal Lawyers' Association. Stacey Hannem, who is with us via video conference, is Chair of the Policy Review Committee of the Canadian Criminal Justice Association. Leo Russomanno is a criminal lawyer practising in Ottawa.

I want to alert members that there will be some delay in terms of connecting Ms. Hannem's lip movement with the words, just so that we understand that there is going to be that kind of a delay when she responds to questions and makes her opening statement.

Have you made an agreement with respect to opening comments?

Michael Spratt, Representative, Criminal Lawyers' Association: Perhaps I will start first.

The Chair: The floor is yours.

Mr. Spratt: It will allow me to steal what some of my friends will say and claim it as my own perhaps.

I will start by introducing myself to those I have not seen before. My name is Michael Spratt. I am a criminal defence lawyer. I practise here in Ottawa, and I practise exclusively criminal defence. I am here today on behalf of the Criminal Lawyers' Association, which is a non-profit association founded in 1971, comprised of more than 1,000 criminal lawyers. We are routinely consulted on issues of policy and we intervene in many important cases. We also bring a practical-effect-on-the-ground perspective on some of the laws and new legislation that we offer evidence on.

It goes without saying that we find it a privilege and, as always, a pleasure to be given the opportunity to appear before this honourable committee.

I think we can all agree that the starting point is that this is an important bill for all Canadians as it deals with the basic right to defend one's self and one's property from an unlawful assault. We can also agree that if someone's actions are reasonable in defending one's person or property, that action should not attract criminal liability. Of course, the issue is how reasonableness is defined.

I will focus my submissions mainly on section 34 or the self-defence provisions. Mr. Russomanno will be talking primarily about the citizen's arrest portion of the bill, and we adopt his submissions — at least, I think we will. However, we do share some concerns about that section, as Mr. Russomanno will expand on some temporal concerns and also some concerns about the increase in private security and potential Charter impacts that may come into play when private security is engaged. I will leave that for Mr. Russomanno so he has something to talk about.

Perhaps a good starting point is acknowledging that the self-defence section, section 34, is a section of the Criminal Code that is in need of being revisited. It is very good to see that that is happening. Academics and the judiciary have both commented that this is an unwieldy and complex section. I can certainly say from a practical standpoint that is quite right.

It may be good to look at currently what we have. I will focus on section 34, because section 34 currently is divided into two sections, 34(1) and 34(2).

Section 34(1) deals with cases where there is no threat of death or grievous bodily harm but there is still an unlawful assault, and that section makes clear that if the person did not provoke the assault, if there is no intention to cause death or grievous bodily harm, and the actions are no more than is required to defend one's self, then criminal liability should not follow.

This section is more narrow than section 34(2). It builds proportionality right into the analysis, and as such, the actions, because they need to be proportional, are assumed to be reasonable in that section.

Section 34(2), of course, deals with the scenario where there is a reasonable apprehension of death or grievous bodily harm, and the person believes on reasonable grounds they must use force to preserve themselves. The difference here is that there is no strict requirement of proportionality. That has been echoed in some of the court decisions we have seen that say that in those decisions a person is not required to measure their response, their degree of force, to a nicety, and that accords with human experience. When we are threatened in these very stressful and dangerous circumstances, we do not want a sterile 20/20 second-guessing, and when your life is in danger, it is assumed in this section that your response will be proportionate.

Of course, you must believe on reasonable grounds that there is a danger. There is a subjective and objective component inherent in that section.

I will talk about the amendments in a moment, because that might be seen to be diluted a little bit in these amendments.

The amendments, if you look at proposed paragraph 34(1)(c), create a standard of reasonableness, that your actions are reasonable in the circumstances. A list of factors is given to assist in a determination of when that will arise.

The first factor is the nature of the force, which would include an examination of whether it is a grievous bodily harm or death. The difficulty with including that as the first factor or a factor is that it can be seen to dilute the protections that we see in the current section 34(2) where, if you face death or grievous bodily harm, we are not going to look at proportionality because of the circumstances and the threat you are facing. Under the new legislation, if you face death or grievous bodily harm, proportionality is now a consideration. It is now put into play. We can see that in those very serious cases where your life is threatened, there may be an after-the-fact examination of the proportionality of your action.

The CLA recommends that it be made clear that when your life is threatened or you are faced with grievous bodily harm, that a lethal response is proportionate, and that there should not be an after-the-fact evaluation or dissection of your actions and proportionality should, as it stands now, be inferred or be assumed in a section, and that avoids the problem of an after-the-fact sterile dissection of one's actions.

The fact that proportionality is in the checklist has some greater implications as well. The committee will be hearing from Professor Hamish Stewart as a witness in the next round. His analysis — I do not want to steal too much of it — is very apt, that you should be able to defend yourself if your actions are necessary and proportionate. Those are what should be reasonable.

The fact that proportionality and necessity make their way into the checklist can cause some problems. For example, in cases that currently fall under section 34(1) where you do not face death or grievous bodily harm, your actions must be proportionate, that now can change, meaning that you might have a disproportionate response in those circumstances where currently you would not be able to avail yourself of the protection of those sections. Now, even if your response is disproportionate, you still may be able to avail yourself of the self-defence provisions, expanding the scope of when they would be available, and at the same time it dilutes the protections for the very serious cases when there can be an after-the-fact consideration of proportionality.

It is also interesting to note that proportionality is not listed as a factor in the next clause, the defence of property. Both clauses use the term “reasonable circumstances.” In 34, proportionality is listed as a consideration. In 35, it is not. There may be some confusion going forward, especially when specific fact scenarios are litigated about the interplay between those sections and the inclusion of proportionality in one and not the other.

The next two comments I will make briefly so I can preserve some time for others. We see some difficulty with the practical application of a checklist. Certainly, it is a non-exhaustive checklist. We are used to dealing with these sorts of checklists or factors in our case law, but there is always a risk that some factors will be given more importance than the others by their inclusion, especially when we see that these factors are really just examples or ways of contextualizing proportionality and necessity. It would be our recommendation that instead of providing a checklist that may cause some mischief in specific fact scenarios, where some of those factors will not apply, that the proportionality and necessity requirement should be built right into the initial test, that proposed paragraph 34(c), instead of saying “reasonable in the circumstances,” that the act be believed to be reasonably necessary and that there is a belief of proportionality.

That brings me to my last point about the subjective and objective component. In section 34(2), we can see this objective component, because we all realize that in these specific fact scenarios we are dealing with different circumstances and people that bring different subjective factors may appreciate factors differently. In the current section 34(2) we see terms like “reasonable apprehension,” “believes, on reasonable grounds” that incorporate this subjective element quite clearly into the initial test.

Proposed paragraph 34(c) suggests “reasonable in the circumstances.” Some of the factors that follow after suggest or you can infer subjectivity from some of those factors, like history between the parties, but there is a risk that that necessary subjective element that has been a long-standing proposition in our Criminal Code may be a bit diluted because that subjective element is not made explicit in the initial test under 34(c). It would be our recommendation that the language “reasonable in the circumstances” should at least be amended to be a reasonable belief or apprehension, and language such as that be incorporated into that clause to bring and emphasize the subjective element, given that many of these cases are not only fact specific but also offender or defender, the person who is defending themselves, specific.

Those are some of my initial comments. I am sure we can have a good discussion about some specific examples, but it might be good to turn the floor over to some others, particularly Mr. Russomanno at some point, who will talk about the citizen's arrest portion of the bill.

The Chair: Thank you. I will remind everyone that we have an hour to deal with opening statements and questions. We are now down to 50 minutes. Everyone can hopefully keep that in mind.

I will turn now to Ms. Hannem for her opening statement.

Stacey Hannem, Chair, Policy Review Committee, Canadian Criminal Justice Association: Thank you. I appreciate the opportunity to appear and speak with you today on behalf of the Canadian Criminal Justice Association. In terms of my personal credentials, I am also a professor of criminology at Wilfrid Laurier University, but today I am representing the 700 members of the Canadian Criminal Justice Association, comprised of criminal justice professionals, academics and citizens concerned with matters of justice.

I chair the policy review committee, which is a subcommittee of the CCJA. We carefully consider nearly all legislation proposed that deals with criminal justice matters. We are particularly concerned with potential efficacy of proposed changes to criminal justice legislation, and with the impact of that legislation on the criminal justice system, on public safety, and on human and civil rights.

We did submit a short brief for your consideration in writing, which indicates that as an association we are generally in favour of the principle of the legislative changes proposed to citizen's arrest and to self-defence, and we agree that suitable legal provisions should be in place to protect innocent Canadians who may find themselves placed in a position where they need to defend themselves or their loved ones from aggression.

We agree that the laws are in need of updating and that a simplification of the laws is certainly desirable. However, as a committee, when we discussed this bill to find a consensus position on it, we did find a wide range of opinions and concerns with respect to the anticipated implementation and the possibilities of this legislation as it would be enacted on the ground.

Our brief advised some caution and careful attention to these changes. I would like to speak specifically today to some concerns raised by our members.

As noted in our brief, we have some concerns that the proposed changes, particularly to the citizen's arrest provisions, may appear to encourage or condone vigilantism as a response to criminal offences against property. While these amendments, as I understand them, are intended to empower and protect ordinary Canadians from prosecution, the reality is that most Canadians are not that well versed in our Criminal Code. Those citizens who are most likely to take the time to read the Criminal Code, to examine these provisions and to look at the increased latitude surrounding citizen's arrest are precisely the types of individuals who are likely to engage with these provisions in a proactive manner. I think we are talking about individuals like private security guards, people involved with Neighbourhood Watch, or citizens who are involved in groups such as the Guardian Angels, who engage in city patrol.

The possible danger here is that an increased use of citizen's arrest provisions also increases the risk that a citizen untrained in arrest procedures, unidentified by a police officer's uniform, could be injured or in fact killed in the process of trying to enact a citizen's arrest.

Also, the very nebulous language of arrest within a reasonable time after the offence may lend itself to very liberal interpretations of what is reasonable time. It may result in scenarios where citizens are no longer protected by the law by virtue of a difference between their definition of reasonable time and a judge's definition of reasonable time. There is no common law precedent to refer to when talking about a reasonable time following the commission of an offence.

A further concern that we have about the temporal aspect of citizen's arrest relates to the type of case that was the antecedent to this legislation, the case of David Chen in Toronto. The thief, whom Mr. Chen did not confront at the time of the theft, returned to Mr. Chen's store an hour after he had committed the crime and, at that point, was confronted and detained. The question becomes, then, whether it is reasonable for a citizen to attempt an arrest an hour after the crime was committed when the accused is no longer in possession of the evidence, the stolen goods. There are numerous studies from both the United States and Canada that conclusively demonstrate that the number one cause of wrongful conviction in North America is mistaken eyewitness identification.

In a case like this, where a suspect is permitted to leave the premises, and a significant time lapse occurs between the witnessing of the offence and a subsequent citizen's arrest, I think we have the likelihood that the individual may in fact misidentify the suspect and arrest and/or accuse an innocent person.

Studies in the field of psychology confirm this is even more probable when differences in ethnicity between the suspect and the victim or witness are also a factor. This research dates back as far as the 1970s. It is well established. I am happy to share that with the committee if you are interested in it.

For this reason, we would strongly recommend that the Senate revisit the provision for citizen's arrest and determine whether too much latitude is being afforded in extending the time period for citizen's arrest beyond the immediate finding of an offence. We would echo the Canadian Bar Association and the Barreau du Québec in questioning the need for the changes to the citizen's arrest provisions and whether these changes may, in fact, do more harm than good.

Finally, I wish to address the changes to the defence of property provisions, and here I will echo the previous speaker, Mr. Spratt, in noting the omission of the proportionality requirement in the proposed changes for defence of property, and this is concerning to our committee.

Proportionality is listed as consideration for judges in the defence of persons, and I find it strange that we would not wish to emphasize the need for proportionality of force in defence of property, which is arguably much less valuable than human lives and bodily integrity.

In the absence of proportionality requirement or a stipulation of, for example, no more force than is necessary, the door is open to what many Canadians would view as the overuse of force, and perhaps legal force in defence of property alone, subject to the test of reasonableness. This may be saved by the fact that there is common law understanding of proportionality, but I think it does not hurt to be clear in the expectation of proportionality requirement in these changes.

I would like to conclude there and thank you again for the opportunity to speak with you. I am happy to answer any questions that you may have.

The Chair: Thank you very much.

Mr. Russomanno, please proceed.

Leo Russomanno, Criminal Lawyer, as an individual: I would like to begin by thanking the committee for having me here again. It is always a pleasure to come to the Senate to interact with legislators.

By way of introduction, I am a criminal defence lawyer. I practise here in Ottawa in one of the larger criminal law firms. I have been doing this for just over four years and have appeared at all levels of court.

My interest in this legislation really derives from the citizen's arrest. I co-authored a paper with Professor Vanessa MacDonnell, who also happens to be my wife, and she testified along with me at the House of Commons committee on the citizen's arrest provisions. I have testified before on behalf of the Criminal Lawyers' Association, but today, and as I did at the house on this legislation, I testify as an individual, just as someone who is interested and practices criminal law regularly.

With respect to the self-defence provisions, I echo the statements of my colleague Mr. Spratt in that a simplification of the self-defence provisions is very welcome, I think, by all sides, and I would also echo the concerns of both witnesses with respect to the need for an explicit statement of proportionality and echo as well Mr. Spratt's comments to the effect that we need to ensure that it is understood under 34(c) that there is a subjective component as well as an objective component. Otherwise, I wholly adopt the statements made with respect to self-defence.

With respect to citizen's arrest, we all know that the change in legislation with respect to citizen's arrest came about in large part as a result of the case of David Chen. The case of David Chen pulls at the heart strings because here you have an individual who was just trying to protect his property. He had a person that was coming back to his store, presumably, to commit theft. He had a problem with a rash of thefts in the last few months in his store, if not longer, and he was just trying to protect his property. When the police arrived, he was the one who was arrested and had to go through this whole ordeal. When one reads about the ordeal he had to go through, there is a potential for a lot of sympathy for Mr. Chen. If you read the comments of the judge that decided Mr. Chen's case, it looks as though Mr. Chen was caught in an area where the existing citizen's arrest provisions did not appear to lend him any assistance, nor did any of the provincial trespass to property acts, in that case, the Ontario Trespass to Property Act.

We are not dealing just with citizen's arrest in the Criminal Code. Provincial trespass to property legislation also has provisions which deal with what we know as “citizen's arrest.” The limits on citizen’s arrest and trespass to property legislation are geographical, so the Trespass to Property Act can only be used on the property or in cases of “hot pursuit.” 

Mr. Chen was caught outside the ambit of the Ontario Trespass to Property Act because it was an individual that was coming back, presumably, but was not on his property. He was, presumably, at least until he was found not guilty, not caught within the existing Criminal Code citizen's arrest provisions because the offence had already ended.

However, that was not what the judge decided. The judge in that case decided that the culprit, the thief, was coming back to commit another theft, in other words, that it was a continuing offence of theft. In finding Mr. Chen not guilty, he hinged his not guilty finding of Mr. Chen on that basis.

Professor George Rigakos of Carleton University has done a lot of research on citizen's arrest and private security. In the House of Commons committee, he made a comment that I completely agree with and would ask this committee to consider, namely, that in cases of citizen's arrest effected by common citizens, as opposed to private security, the judiciary habitually bends over backwards to accommodate the power of citizen's arrest, and I think the case of David Chen is a case in point.

The judge in that case went far, and I do not want to say whether it is too far, but the judge went far in accommodating Mr. Chen's apparent right to defend his property. In that case, I would simply say the system worked. The system worked for Mr. Chen in that case. What I ask this committee to do, then, is to look at whether this legislation — and I will talk about the implications of private security — is really necessary for the David Chens of the world. In my submission to this committee, this is a solution in search of a problem.

We do not have a problem here with respect to the David Chens of the world getting caught in the criminal justice system. Yes, it is unfortunate that Mr. Chen had to spend money on a legal team or a defence lawyer to represent him. He had to go through the ordeal of being charged and the stigmatization of having charges hanging over his head. As a criminal defence lawyer, I can tell you that for every person I have defended, yes, that is a serious issue. Yes, it is a problem when someone has charges hanging over their head and, at the end of the day, is found not guilty, having been innocent of the offences that he or she was charged with, as with Mr. Chen, but this legislation does not deal with that.

This legislation will not stop that from happening. The problem may very well have rested with the misuse of police discretion or the misuse of Crown discretion. I think that is arguable.

However, this legislation, in my submission, does not correct that. As a criminal lawyer in one of the busiest firms in Ottawa, I can tell you that I have never seen a David Chen come through my office. We do not see a lot of David Chens in the criminal justice system. What we do see is a plethora of cases involving private security forces that are inherently unaccountable, and this legislation will expand the power of private security. That is what it will do. We are talking about expanding the power of the private security, which is possibly — we do not know — not subject to the Charter.

That is a problem, in my submission. If we are concerned with the liberty of Canadians, the liberty of people in this country, then we ought to be concerned about security forces that are empowered to restrain people, to take away their liberty, and that are not accountable.

I myself have dealt with a number of cases involving private security that have been heavy handed in arresting individuals. I have dealt with individuals that have been wrongfully arrested by private security that have had to spend time in custody, that have had to suffer through the indignity of a wrongful arrest and, having been placed into police custody and treated like a criminal, only at the end of the day to have to go through the expense, stress and anxiety of a trial to be found not guilty at the end of it, and their life is essentially on hold until that happens.

What I am asking from this committee is a little sober second thought when it comes to what we are doing about expanding private security. Since the 1990s, the expansion of private security would astound you, how much private security forces actually outnumber our police force. Our police force, if I need to lay out the difference here, is accountable. There are mechanisms in place to hold police officers accountable.

The Chair: Mr. Russomanno, we have chewed up half an hour now with opening statements. Members will want to have the opportunity.

Mr. Russomanno: Absolutely, I apologize, and I will welcome questions.

The Chair: Mr. Chen will be appearing before the committee on another date, and we will see if he believes the system worked for him.

A quick question, if I may: If somebody knocks me on my head and steals my wallet, and I see that individual the next day and there is no police officer available, you are suggesting it would be wrong for an individual, under those circumstances, to detain that individual until a police officer could arrive. Is that what you are suggesting?

Mr. Russomanno: Is the scenario that somebody steals your wallet?

The Chair: No police officer is available the next day. You are saying it is wrong for an individual in those circumstances to detain that person until a police officer can arrive.

Mr. Russomanno: In Mr. Chen's case, it was later on that day.

The Chair: That is not my point. My point is this law will allow my interpretation to occur, but you are saying that is wrong.

Mr. Russomanno: No, I am not. I am saying a court may accommodate you, as it did Mr. Chen. It would probably be a better course of action to take down the description of the person and call the police.

The Chair: Mr. Chen called the police, and five hours later they showed up.

Senator Fraser: I would like to come back to this question of reasonable time.

Ms. Hannem, I think you said that the concerns about reasonable time might be saved by common law precedent. Could you expand on that? What do we know now about what courts consider to be reasonable time?

Ms. Hannem: There is no common law precedent at this point for reasonable time. I think I said that the lack of proportionality might be saved by the common law precedent.

Senator Fraser: I am sorry. My memory failed me. You are telling me we do not know anything, then, about reasonable time.

Ms. Hannem: No, the Criminal Code provisions for the police do not allow the police to engage in an arrest without a warrant unless they are catching the person in the act or they have somebody there who has detained them. The police cannot come along the next day without a statement or some kind of evidence and arrest. It simply does not exist in our Criminal Code.

There has been latitude. As Mr. Russomanno suggests, the courts have engaged their discretion, and in the Chen case, this is a perfect example because he actually did violate the citizen's arrest's provisions. The fact that he was found not guilty was an act of discretion on the part of that court.

Senator Fraser: The court's reasoning on the way to that was fascinating. The judge on the way to that finding, to take Mr. Russomanno's figures, did go a long way to accommodate Mr. Chen in suggesting that it was a single crime that was still being committed with a little sort of recess in the middle between the beginning and end of the crime, which was difficult.

Mr. Russomanno, because you are the one who raised this in particular, in the case of security guards, who presumably have some training in what they are allowed or not allowed to do, what would be your best guess on what would be considered “reasonable time”?

Mr. Russomanno: I do not think reasonable time is one of those things that courts will come up with an actual 24 hours or 48 hours kind of limit. In the case of security guards, it is hard to say. Security guards, if the person is on the property under the trespass to property legislation, are able to effect an arrest or trespass an individual if they are on the property having been trespassed before, so that temporal requirement is not necessary in those circumstances.

Senator Fraser: In the case of a shopping mall, this person has been spotted on CCTV shoplifting a jacket in Shop A, and then this person has proceeded down the hall to the food court and, maybe an hour later, is spotted there eating lunch, or they think it is him. Would that seem to you, as a lawyer who has had to argue these cases, a reasonable time — an hour — in a case like that, where the person is no longer in the shop on those premises?

Mr. Russomanno: Yes, it would be seem to be a reasonable time. I would wonder whether the trespass to property legislation would still apply to somebody who is actually on the shopping mall premises because they would have the power to trespass the person from the mall entirely, I think. In other words, just because they committed theft in Shop A does not mean they will only be trespassed from Shop A but from the entire mall. The geographical ambit of the mall security, so to speak, would apply to the entire mall.

Senator Fraser: Would it apply on the sidewalk outside?

Mr. Russomanno: That would not apply under trespass to property unless they were in pursuit of that individual. I would say under the legislation, as it is being proposed, a reasonable time after, an hour, I would venture to guess that that would fit within the legislation.

Senator Fraser: What about four hours?

Mr. Russomanno: I do not want to split hairs. I do not know. I think every case would be different, and, as with most legislation, we are leaving it up common law to try to get some principles together and figure out exactly how best to deal with these scenarios and what would be reasonable in the circumstances. Four hours in that case may not be reasonable.

Senator Fraser: I am sorry to go on and on about this, and I know the chair wants me to stop, so I will, but as with all legislation, the more you delve into this, the more complicated it gets.

Senator Di Nino: Thank you, chair, and welcome all three of you. It is always good to learn from those who practice these kinds of things every day.

As I see it, the existing law is not balanced in the way that I believe it should be, and it really creates an injustice for the citizen when confronted with this kind of a situation.

The change created by Bill C-26 is really a modest expansion of the current law to allow the citizen some leeway, as our chair said a moment ago. If someone commits a crime against me or my property and he is faster than I am, which at my age is likely everyone, and he gets away but I see him the next morning at a coffee shop when we are both having a cup of coffee, the changes, at least to me, appear to cover that so that I as a citizen, in effect, can still have that right to be able to say, “Hey, you stole from me. You need to go to jail,” or “I will call the police and I want to do that.” What is unreasonable about that?

Mr. Russomanno: As it applies to private citizens, I do not have a lot of concerns per se about vigilantism with respect to this legislation. The language, the temporal limit and the additional language of where it is not reasonably feasible to call the police, does a fairly good job of limiting it to those kinds of situations. I cannot disagree with you there, and I will not disagree with you about what is wrong with that. I see the guy the next day in the coffee shop. I do not think that is necessarily the problem.

I think the problem is the mischief that it causes with private security, and if we had a clear statement from the Supreme Court of Canada, or if we had legislation to the effect that private security is accountable and the Charter applied to them or there was some other mechanism for private security, I would be much less concerned. I am not raising concerns that I think we will have armed posses of individuals arresting people. That is not my primary concern.

Mr. Spratt: I agree with Mr. Russomanno that the example you gave is quite reasonable and we want to ensure that people like Mr. Chen do not have to go through this experience to be captured by the legislation. The problem is there could be unintentional mischief caused by the broad nature of the legislation and its applicability. If you look at private security, and that is our main concern, it can lead to mischief in two different ways.

With an increase of private security, these are not trained police officers and are not as accountable as our highly trained police officers, and two things could happen. There could be breaches of citizens' rights by private security because there are not properly trained, which is something we should seek to limit.

On the converse side, there have been statements from our court, recent statements in Alberta specifically, that the Charter may indeed apply to these private security and private citizens who are facilitating arrest. Because they are not as well trained as police, that could lead to evidence being excluded and people ultimately who are guilty of a crime not being found guilty because there has not been adequate safeguards about the applicability of this legislation to private security and how that may intersect with the Charter and the application of the Charter.

It can lead to people's rights being violated when they should not be violated. It can also lead to evidence being excluded and people not being held accountable because private security is not dealt with specifically and there is mischief in the legislation with regard to that.

Senator Di Nino: Surely that fairness and balance must also be applied to the owner of a property or a shop who has a larger shop and needs assistance in this, to give him the leeway as well to be able to protect his property or his rights.

Mr. Spratt: It is all about balance, and our concern is that Mr. Chen and private citizens may have some recourse and have some benefit through this legislation. The drafters may not have turned their mind to private securities and other factors that may tip the balance in a way that was not intended.

Senator Baker: Thank you to the three presenters. They were excellent presentations. Each one of them was excellently done, and I could have listened to Mr. Russomanno for an hour, at least, and enjoyed his presentation. However, we are under a time factor here.

As well, thank you to Ms. Hannem who pointed out that the police do not have the power to arrest that we are giving under the citizen's arrest provisions of this act. She pointed out that a police officer can only arrest someone who has committed an indictable offence or who is the process of committing a criminal offence and can only detain that person for purposes of exigent circumstances or identification that are outlined in section 495 of the Criminal Code.

My question concerns the Charter, and Mr. Russomanno's opinion seems to be that the Charter does not apply. We went through this with the Canadian Bar Association as well, and they hold your general opinion on this.

However, when we look at recent court decisions, and I reference you to a great judge by the name of Fradsham in the province of Alberta, in R. v. McCowan, 2011, Carswell, ALTA, 313, in which the headnote says that the issues included whether the officer's actions were subject to provisions of Charter and whether he had authority under section 494 of the Criminal Code to arrest the accused. That was a civilian loss prevention officer employed by Zeller's, I think it was. It says that provisions of the Charter applied to the officer's arrest of the accused since whoever arrests any individual is performing a state function.

That is the law in the province of Alberta. Reading that judgment, which is quite extensive, as all of the Fradsham's cases are — wonderful judge — reading it up to date, I cannot see how anyone could say that the Charter does not apply. First of all, have you heard of the case and what is your explanation to counterbalance what you said previously?

Mr. Russomanno: I have heard of the case. It is a great judgment case. It is one of those lower court judgments that really does your research for you. It sets out all of the principles very well.

I should clarify. It is not my opinion that the Charter does not apply. It is based on our appellate courts differing on this. The Ontario Court of Appeal has said that the Charter does not apply to private security; the Nova Scotia Court of Appeal has said that the Charter does not apply; the B.C. Court of Appeal has said that the Charter does not apply. The Alberta Court of Appeal has said that the Charter does apply, and the Supreme Court has not said anything. We are in a state of flux right now, and I suppose the way that the common law works out is eventually, hopefully, there will be a case that gets to the Supreme Court where the Supreme Court can tell us whether the Charter applies.

In my opinion, the reasoning of the Alberta Court of Appeal in Lerke, a 1986 decision referenced by Justice Fradsham, is referenced in there. It is a 1986 judgment where really the Alberta Court of Appeal says the Charter applies, and the reason they say the Charter applies is because it is based on a historical analysis that historically the right of citizen's arrest is derived directly from the sovereign and not from the police. In other words, the citizen's arrest power predates police power of arrest, and the police power of arrest comes from that. Based on this historical analysis, the Charter applies because that is where the power of arrest flows from. I find this reasoning quite persuasive.

I think other appellate courts have erroneously relied on the Supreme Court of Canada case called Buhay to suggest the Charter applies, and Justice Fradsham points out very well that they erroneously hold that to be the case where the Supreme Court says the Charter does not apply; but the Supreme Court in a subsequent case called Asante-Mensah says they have not pronounced on this. It is all laid out in the decision that you have referenced. It is all laid out very well in there.

We are in a state of flux. Right now we do not know what applies and what does not. At least in Ontario it does not; in Alberta it does, and we are left with that.

Senator White: Because you have raised it and others have as well, I will speak specifically about the issues around private security.

I am as concerned as you probably are about the growth of private security in the province of Ontario. We have legislation that controls the training and testing but really has not gone further in making them accountable in oversight.

If that is your focus, and I think it is, if I may Mr. Russomanno, the examples have been given, and the example I always use is a kid's bicycle is stolen and the next day the father sees someone driving the bicycle and takes it back forcibly and finds himself arrested by the police for assaulting the individual. You are not talking about those cases. You are really concerned about the private security, and I agree with you. I am concerned about the private security industry. However, that is not what we are talking about today. We are talking about Mr. Chen protecting his property, and there are other ways, I would argue, that the provinces, with their responsibility for private security, have an opportunity to step forward and do the right thing as well. Am I correct that private security is your concern?

Mr. Russomanno: Yes, my concern is private security, and I did not have the time to get into this before, but I do agree with the comments made by Ms. Hannem about the temporal concerns, that there is a potential for wrongful arrest. Then you get into a whole other ball of wax insofar as private individuals arresting someone after the fact. You could have all sorts of liability or wrongful arrest concerns there, and really, as the time increases, the need for a trained police force to investigate increases. It is much different when you are catching someone red-handed, so to speak.

I would agree with your comments that my concerns lie primarily with private security. I would say that it is something that ought to be considered by this committee because this is who it will affect. It will not affect as much the David Chens of the world as it will private security. It is just a necessary consequence of the legislation that is being proposed.

[Translation]

Senator Dagenais: I’d like to get back to the bill. Do you understand or speak French, Mr. Russomanno?

Mr. Russomanno: I understand French but do not speak it.

Senator Dagenais: I want to get back to the section of the bill dealing with citizens’ arrests. I have to mention that I was a peace officer for 39 years. Allow me to very briefly describe an actual event.

We had some farmers whose maple syrup buckets were constantly being stolen. One farmer hid in his barn, with his son. They decided to keep a lookout and, during the night, they spotted two individuals. They arrested them and tied them up. They called us, and when I got there, I congratulated them. First of all, the investigation was over much more quickly and when we were at the courthouse, before the judge, they explained how the arrest had been made and the judge congratulated them for their courage. I assume that the bill would help them even more. I know that they didn’t have time to read the warning, but perhaps that wasn’t their responsibility.

That is obvious when an arrest is made on the spot. I believe that this bill will help ordinary citizens who proceed with an arrest. There is much discussion about private security. I’d like to come back to the ordinary citizen. I’d like to hear your view on this subject.

[English]

Mr. Russomanno: You would like my view personally? It sounds like the law worked in the anecdote that you mentioned. My view would be the same response I gave to Senator Di Nino. I certainly sympathize with private citizens who are trying to protect their property. You can set out probably a dozen scenarios or more in which you will not have me unreasonably disagree to a scenario. No, I am not disagreeing. I think that in cases of private citizens who are victimized, trying to protect their property, I will not disagree.

I can equally lay out many scenarios involving private security where probably you would be hard pressed to disagree with me on private security being unaccountable for their actions. I think it is all part of the cost-benefit.

The Chair: Ms. Hannem, feel free to jump in. Do you have any comments with respect to that issue?

Ms. Hannem: As has been suggested, the existing provisions and common law, the precedent that has been set, has given a great deal of latitude to citizens who wish to engage in these types of activities to protect their property or themselves, and I do not necessarily see that the addition of this latitude of time will provide extra protection, if you will. I think it will still go to a test of the court because the court will have to determine what is reasonable, which means it still ends up in front of a judge, so you will not protect people like David Chen from ending up in front of a judge who will have to make that determination.

Senator Unger: My question is concerning proportionality. In the heat of a battle between two people, is proportionality a realistic expectation?

Mr. Spratt: It depends on the circumstances of that battle. The law, as it is currently formulated, is if you are at risk of suffering grievous bodily harm or death, if you reasonably believe that, proportionality is not a consideration for the common sense reasons we can think of — the heat of the moment and the stakes of the confrontation. Quite rightly under the current section 34(1), proportionality is a consideration. If someone pushes you or punches you, it does not give you carte blanche to take action against them.

The difficulty we have with the enumeration of proportionality is that in some cases it may dilute its importance and in some cases it may overly enhance its importance causing I think unintended mischief in both circumstances.

This law simplifies what is a complex section of the code, but there are some expenses that come at that simplification, and I commend you to read Professor Roach's paper about that, because with that simplification there comes a lack of certainty and some grey areas that may cause some problems in the future.

Senator Unger: As I am listening to all the witnesses, it seems there are many grey areas. We heard yesterday one witness say reasonable time depends on the situation. Basically, you cannot nail down any of these issues really, and again, with regard to the private security in a citizen's arrest, with the judges bending over backwards to accommodate private citizens, would they not take into consideration if it is a private citizen or one of these private security guards?

Mr. Spratt: There will be an evolution of the common law as it relates to that.

The problem with that is, as private security takes advantage of these provisions, the temporal components, and can expand their role, the danger is that reasonable time is also expanded to take into account sort of the quasi-police work being done to identify someone. That can lead to some problems, especially with the intersection with that portion with the self-defence portion, because you can have a situation where there is someone not in uniform, who is not identified as a police, is carrying out what may be an unlawful arrest, and self-defence of the person being arrested may come into play. There are some questions around paragraph 34(2)(h) about whether the threat is lawful, and some complexities may arise there.

From our perspective, legislation needs to provide guidance and as much certainty as possible, which is why we want the proportionality, necessity, and subjective reasonableness of those to be incorporated up front instead of inferred, in maybe a unpredictable way, from a list of factors that is provided, of course with the exception of proportionality for those grievous bodily harm cases that I have laid out.

The Chair: With respect to the concerns about security guards, which I think all three of you have expressed — and Senator White referenced this — is it feasible that this could be handled in terms of the guidelines, controls, or however it is described, by the provincial governments? We discussed the fact that Ontario has legislation, as an example, where there are defined hours of required training. A number of matters are dealt with. Could those kinds of issues, which all three of you are concerned about, be addressed through provincial legislation? Should they be addressed through provincial legislation?

Mr. Spratt: I think they should be. However, this legislation opens that Pandora's box, and we are hoping that the provinces follow to close that door off. I think this is a prime place to do it, up front, so there is some certainty.

Just so that I am clear, when we are talking about private security, we are not just talking about loss prevention officers; we are talking about community officers and community housing. That brings into play some real questions about different racial groups, different factors of discrimination, how those groups are treated and how they interact with the justice system. It is not just private security, but it is people who can deal with some very vulnerable groups, and the accountability should be there up front. We see this in Ottawa. We see the expansion of these types of interactions.

The Chair: Thank you very much. Unfortunately, we have run out of time and we have to move on. We have three other witnesses waiting to testify. We thank all three of you for appearing here today. We very much appreciate it.

Our two witnesses appearing at this juncture are Mr. Hamish Stewart, a law professor with the University of Toronto; and Emma Cunliffe, a law professor from the University of British Columbia. Ms. Cunliffe is appearing via video conference.

Welcome, witnesses. We appreciate your appearance here today.

Professor Stewart, can we begin with you? You have the floor.

Hamish Stewart, Law Professor, University of Toronto, as an individual: Thank you very much to the committee for asking me appear to talk about Bill C-26. Some of what I have to say will overlap with what the witnesses in the first hour had to say, and some of it will overlap with material that was provided in writing by various interested people.

Bill C-26 is the first significant amendment to the self-defence provisions and the defence of property provisions of the Criminal Code since our first Criminal Code came into force in 1892, so it is quite an important moment in the history of Canadian criminal law. My remarks will focus on the self-defence provisions, proposed section 34, and I will have only a couple of brief things to say about the other aspects of the bill. However, I am happy to answer questions about other aspects of the bill, if anyone is interested.

In his remarks to this committee a few weeks ago, the Minister of Justice said that the purpose of the self-defence aspect of the bill was to bring clarity and simplicity to a law without sacrificing any existing legal doctrine, or something to that effect. His position, as I understood it, was that this was an attempt to simplify and clarify the law without changing the underlying principles governing the law of self-defence. I must say that I share that. I think that is the right approach to take. To try to simplify the law in this area without changing the existing doctrines is exactly the right way to go.

As has been commented on by judges, academics and lawyers over the years, the existing law of self-defence is excessively complex, confusing and difficult to explain to juries. The existing sections of the code overlap in ways that are difficult to sort out. Like the other witnesses, I support the idea of simplifying the law of self-defence, and especially of consolidating all the self-defence provisions into one section.

What I am concerned about is whether the law, as drafted, actually succeeds in doing that. It does bring it all together. It does simplify it in many respects. Whether it will have the effect of preserving the principles of self-defence law that we have had for many years is less clear to me, and that is what I am concerned about. In light of that, these are the points I want to make about the bill.

As I tried to explain in the written submissions that have been provided to the committee, in my view the three central elements of a successful self-defence claim are that the person defending himself faces a wrongful threat of force; that the defender's response to the force is necessary to avoid the application of force; and that the injury or harm inflicted by the defender is in some sense proportional to the injury or harm that he or she faces. As has been pointed out by a number of other witnesses, it should also be sufficient if the defender reasonably believes that each of these three conditions is present.

Therefore, the existence of these conditions and a reasonable belief in the existence of these conditions is what is central to the law of self-defence. As I briefly point out in my written submissions, this is a common pattern in the law of self-defence in other countries, not just in Canada.

Bill C-26 clearly states the first of these three elements. It is quite clear from the bill that the defender has to be under a reasonable belief that he or she is facing an unlawful threat of force. However, it conceals the second and third elements, the necessity and proportionality elements, in a list of factors to be considered along with many other factors. That is the effect of the proposed section 34(2).

Proposed paragraph 34(1)(c) says the act has to be reasonable in the circumstances, but what does that mean? You then turn to 34(2) and you have a list of factors. Proportionality and necessity do appear in that list of factors, but so do a whole lot of other things. My concern is not with any one factor on its own; it is with the way they are structured in relation to what I think are the core aspects of self-defence, namely, the wrongful threat, necessity of the response, and the proportionality of the response.

In his submission this morning, Mr. Spratt gave a very helpful example of what I am concerned about. He pointed out that under current section 34(1) of the Criminal Code, where you are dealing with less serious altercations, where threats of death or grievous bodily harm are really not in play, the response has to be proportionate. It is stated very clearly in the Criminal Code as it stands that the response has to be proportionate. If someone is pushing you around, under our Criminal Code you are not entitled to kill them; you have to respond in some proportionate way to the degree of force they are using against you.

Mr. Spratt pointed out that under the proposed law, it may be that proportionality will no longer be required in that type of scenario because it is now just one factor to be considered along with all the other things mentioned in this section, including the role of the person in the incident, the relative size of the parties, and things like that.

My central concern, really, is that the factors listed in 34(2)(c) that are relevant to self-defence — such as the history between the parties, the relative sizes of the parties, the presence or absence of weapons — these things are indeed all relevant to self-defence, but they are relevant to self-defence through their effect on proportionality and necessity. If you are faced with a threat from a weapon, then naturally your response may be of a greater magnitude because the seriousness of the threat that you face is greater.

That is an aspect of the necessity analysis or of the proportionality analysis, depending on the facts. However, it does not have the same status, in my view, as the requirements of wrongful threat, necessity and proportionality.

Similarly, 34(2)(h) says that it is a factor to be considered whether the act committed was in response to a use or threat of force that the person — that is, the defender — knew was lawful. I am not sure how this section will interact with 34(3), which clearly eliminates the claim of self-defence when you are dealing with a police officer who is arresting you or something like that. That is clearly not permitted under this section. However, how that will interact with 34(2)(h) is not clear.

In my view, if you know that you are facing a lawful use of force against you, you should submit to that force. It is the essence of an organized society governed by law that certain people have, under certain circumstances, the ability to use force against you; and if you know that to be the case, you should submit to it; it should not simply be a factor to be considered along with others.

Therefore, my concern is really structural, but it is not just a question of aesthetics, if you like. It is also how it will affect actual cases when a jury is instructed: Here are a bunch of factors to be considered. What will they do with those factors if they do not have the structure that the classic self-defence idea gives us, namely, the wrongful threat, the necessity of the response and the proportionality of the response? I would be happier with proposed section 34 if it highlighted those necessary elements of self-defence and then made it clear that the other factors were relevant to those elements and thereby relevant to self-defence, not that it is just all in the mix together.

I am trying to respect the time, so I will stop there on proposed section 34.

On the defence of property provisions, I will just say one thing, which is that I agree with all those witnesses who have pointed out that proportionality is not specifically mentioned in the defence of property provisions. I think it ought to be, for the same reason that it should be highlighted in the self-defence provisions. Everyone has a right to defend their property, but there has to be some relationship between the nature of the threat to your property and the nature of the response that you use.

Our courts have consistently maintained over many years, both English and Canadian courts, that it is disproportionate, for example, to shoot at a trespasser. I think the reason is that a mere trespass does not pose a serious threat to your property, and shooting at the trespasser is a disproportionate response. I think it would be good if the proposed section 35 made clear that proportionality was to be considered in defence of property as well.

Finally, on the citizen's arrest, I have not prepared any submissions on the citizen's arrest portion of the bill, but if anyone has any questions about my views I would be happy to answer them.

The Chair: Thank you very much, professor.

Professor Cunliffe, do you have an opening statement? If so, please proceed.

Emma Cunliffe, Law Professor, University of British Columbia, as an individual: Thank you, I do.

Thank you to this honourable committee for inviting me to speak to you today on Bill C-26. My presentation will focus on the amendments to the self-defence provisions, which will become the new section 34. In particular, I have focused my remarks on my concern to ensure that the protection presently offered by the existing case law to women who harm or kill an abusive partner is retained within the new provision. However, before I turn into the detail of self-defence, it may be helpful for me to explain the overarching values that I perceive are at play in this bill.

Each of the provisions in this bill authorize one citizen, acting in a private capacity, to use force against another, even to the point of risking or causing harm. In that sense, they are and should remain exceptional as they run counter to the usual prohibitions on such force by private citizens.

Three principles, in my view, should guide the scope of these exceptions. The first is that the use of force should be a last resort in the sense that reasonable alternatives are not available to the accused person. Regard should be had to the accused person's experience in determining what constitutes a reasonable alternative in the circumstances.

The second principle, and echoing Professor Stewart here, is that the use of force should be reasonably proportionate to the threat that has been encountered by the accused. Regard should be had to the accused person's perception and abilities in determining what is reasonably proportionate in the circumstances.

The final criterion that I would use is that the law should continue to protect those who are most likely to be victims of violence, and in particular should operate in a manner that is consistent with the section 15 Charter guarantee of substantive equality, in addition to respecting other Charter rights.

Turning then to self-defence, Bill C-26 has, as Professor Stewart and others have mentioned, a number of very positive dimensions. I agree that reform to the existing statutory provisions is needed and that a simplified framework has the potential to assist juries, judges, police and lawyers to administer the law.

It is my understanding that Bill C-26 is intended to simplify the existing law of self-defence and to codify existing judicial principles and not to change the law. My comments this morning are predicated on that understanding.

My first recommendation in relation to the language of the proposed section 34 relates to the use of the phrase “force, or a threat of force” in section 34(1)(a) and corresponding terminology in other clauses. Again, for those members who are turning to the bill, paragraph 34(1)(a) refers to force used against a person or a threat of force.

The present language in the existing sections 34 through 37 refers to a person who is unlawfully assaulted. A rich jurisprudence has been developed by the Supreme Court of Canada about the meaning of that phrase. These cases confirm that a reasonable belief in an impending assault, or an honest and reasonable mistake that one is being assaulted, will suffice for the purposes of engaging self-defence.

The phrase “is unlawfully assaulted” as used in the present provisions has worked well, and I can see no good reason to depart from this phrase in favour of “force or a threat of force.” My concern is that changing this language will be interpreted by the court as evidence of a statutory intention to alter the existing case law, which would, in my understanding, be contrary to the true intention of this bill.

My second recommendation relates to paragraph 34(2)(e) of the proposed provision, which is the principle that in considering what constitutes a reasonable act the court should have regard to the size, age, gender and physical capabilities of the parties to the incident. I believe that this provision is intended to capture the principles that emerged from Lavallee, Pétel and Malott, among other cases, that the definition of reasonableness must be adapted to circumstances which reflect the experiences of women in abusive relationships.

When Justice Lynn Ratushny delivered her self-defence review final report, she recommended that a broader range of circumstances should inform the reasonableness criterion for self-defence. In addition to the principles that are listed in proposed subsection 34(2), the circumstances proposed by Justice Ratushny included, and here I am quoting from her report, “the defender's background, including any past abuse suffered by the defender, and the means available to the defender to respond to the assault, including the defender's mental and physical capabilities.”

These circumstances specifically articulate the concern about abusive relationships, and I respectfully consider that it is important to include direct reference to these matters in order to continue to counter the myths and stereotypes about abused women that were identified by the Supreme Court in cases in Lavallee and Malott.

Additionally, work done by a range of scholars, including Professor Elizabeth Sheehy of the University of Ottawa, suggests that even after Lavallee and Malott, Aboriginal women who kill their partners in the context of abusive relationships continue to have difficulty arguing self-defence. This means that Aboriginal women are disproportionately likely to be convicted of homicide offences and serve a sentence of imprisonment in circumstances where they have killed a partner in self-defence, often after horrendous abuse.

I recommend that the revised section 34 should include a subsection which refers to the need to ensure equal access to the full protection and benefit of the law by adapting reasonableness to reflect all relevant circumstances of the parties to the incident. This provision would place the equality guarantee at the forefront of jurors' minds as they are considering self-defence.

I thank the committee for its time this morning and look forward to answering any questions you may have about self-defence. I have also prepared answers to questions on defence of property and citizen's arrest if the committee has questions on those matters.

The Chair: Thank you very much, professor. We will begin the questioning with the deputy chair of the committee, Senator Fraser.

Senator Fraser: Thank you very much indeed, both of you, for very important and interesting presentations.

Professor Cunliffe, on the matter of spousal abuse, usually abuse of women, I would have thought that (2)(f) captured a number, if not all, of the elements that you were particularly concerned about capturing:

. . . the nature, duration and history of any relationship between the parties to the incident, including any prior use or threat of force and the nature of that force or threat;

Why in your view would that not be sufficient to cover the ground you believe needs to be covered?

Ms. Cunliffe: Thank you for the question, Senator Fraser. I consider that that is a helpful provision, but it does not go far enough because it does not do two things, really. One is that it does not refer specifically to the history of abuse which may have occurred in relation to the victim of the charged crime, by the victim of the charged crime against the accused in the charged crime, and so it is a very clear one-dimensional dynamic that the court has identified in the series of cases. This neutral language does not reflect the extent to which this is an asymmetric dynamic in circumstances of battering relationships.

A second concern that I have about paragraph (f) is that it does not refer to past abuse that the defender may have suffered at the hands of others. One of the dynamics that has been identified in academic research into self-defence cases is that often a woman who is battered to the point where she defends herself by killing her partner has experienced abuse not only in the instant relationship but also in prior relationships with men.

Now, the correlate to that, interestingly, is that those women who do eventually kill a partner are highly unlikely to go on and commit other criminal acts. Therefore it seems to be a moment where they actually remove themselves from this horrendous dynamic. However, I think it is important to focus the trier of fact's mind on the possibility that the accused who stands before them may not only have been abused in this relationship. She may have a history of abuse, including a childhood history of abuse, and I do not believe that paragraph (f) does that piece.

Senator Fraser: I have a second question for you. I think I heard you say that we should be including here, presumably in the non-exhaustive checklist, a reference to what amounts a reaffirmation of Charter rights.

Ms. Cunliffe: Yes.

Senator Fraser: I remember years ago suggesting a similar insertion in a bill that was before us and my suggestion was greeted with pure horror by some of the more eminent persons around the table who said to me that if you write into the law that the Charter applies in some cases you are by inference saying it does not apply in other cases. The Charter applies always and everywhere. Surely it will be the judge's job to remind the jury of that? No? What would your comment be?

Ms. Cunliffe: I agree entirely that it should and that the aspiration that we have set ourselves by adopting a Charter is that it will. However, present experience suggests that equality in particular tends to be both a right and a value which is overlooked at times. For example, the research that Professor Sheehy has done into the experiences of Aboriginal women as defendants in particular suggests that a rich conception of substantive equality has yet to infuse the fact determination of exactly the dynamic in which they kill their partner in that specific instance. For that reason, while I agree it should not be necessary, I fear that at the present time it is.

Senator Fraser: Thank you. I could go on and on with both of you but the chair will not allow that.

Senator Di Nino: I would like to continue the questioning by Senator Fraser to first state that in the other place the Justice and Human Rights Committee dealt specifically with the issues that you have raised and made several changes to the list of factors and other.

After hearing from a large and varied group of people, the modification includes the opening words of the provision to add that the court shall consider relevant circumstances, in effect converting the “may” into “shall,” and the addition of physical capabilities to the section where they talk about size, age, gender and so forth. Also there is the inclusion of the history of any relationship between the parties. It seems to me that the Justice and Human Rights Committee attempted to deal with your concerns through this bill and their amendments were accepted and passed.

Are you suggesting that this does not cover your concerns?

Ms. Cunliffe: Yes, Senator Di Nino. With the greatest of respect, those changes are helpful and take us a considerable distance. However, in my view they do not go quite far enough for a number of reasons. The first is, as I explained to Senator Fraser, while the court's attention is directed to the dynamic of the particular relationship it is done in a gender neutral way, which does not capture the nature of many of these cases, if not all of these cases, which are circumstances in which a male partner has historically and often profoundly abused a female partner who eventually harms or kills that male partner. The first thing is that I do not believe that the provision should be entirely gender neutral if this is our concern.

The second is that it does not capture the idea of an accused person who has a history of abuse which exceeds the present relationship, and the third is there is no reference to the mental abilities or the means available to the defender. In circumstances where, for example, to be certain, a woman may be smaller and she may be less physically strong the question of the means available to her to defend herself seems to me to be quite important.

I return to a comment that Professor Stewart made that it may be necessary in circumstances where somebody pulls a weapon to use a weapon to defend oneself, but in circumstances where they have not pulled a weapon it is not necessary to pull a weapon to defend oneself. That dynamic may be very different in a battering relationship and I believe that is a piece that needs to be captured and that is captured within the present case law.

Senator Di Nino: I think we all agree that the list of factors is not all inclusive and should not be. It would seem to me that that would leave the discretion to the presiding judge or judges to deal with those matters and you are saying that you do not think it goes far enough.

Ms. Cunliffe: I do consider that it is clear from the language in section 34(2) that the judge has the discretion to add additional factors. However, my concern is to ensure that it is a matter of structured reasoning, that the judge's attention and the jury's attention is drawn to the equality dimensions of these cases as a matter of course and not in the matter of the judge's discretion.

[Translation]

Senator Dagenais: I want to thank our two witnesses. Is the translator here Chair? My question goes to Mr. Stewart.

Nearly all lawyers’ representatives that we have heard suggest that we improve or clarify the meaning of proportionate force during an arrest. Do you have a clear definition of proportionality for the ordinary citizen?

[English]

Mr. Stewart: I wish I could give you a clear definition of proportionality in any context. I hope you do not think this undercuts my earlier remarks too much. The concept of proportionality is central to many legal ideas. It is central to self-defence. As we know, it is central to justification under section 1 of the Charter and there are other contests where we are not always aware of proportionality reasoning operating but it is still there in questions of whether my use of my property is reasonable given your use in enjoying your property. I think it is everywhere in the law and it is not easy to define clearly in any of these contexts.

In the context of an arrest, when a police officer is making an arrest, normally we think that he or she is entitled to use whatever force is necessary to carry out the arrest, generally speaking. I think the concerns expressed by the two lawyers this morning revolved around whether we want to give private citizens that same power because of the fact that they are untrained in the use of force and this lingering issue about whether they are accountable under the Charter in the same way that police officers are, which we do not know.

It may not be quite right to say a police officer can use whatever degree of force is necessary to affect an arrest because there may be some limits beyond which it would be too destructive to the person being arrested, but I do not think I can offer a specific definition. I think the self-defence provisions of the code as they stand do use the idea of proportionality but in a fairly rough way. As was pointed out earlier this morning, section 34(1) uses the concept of proportionality but does not tell us what it is. It has been given a fair amount of content in the case law.

Section 34(2) as it currently stands does not expressly use the concept of proportionality, but because section 34(2) is specifically concerned with those situations where the accused does cause death or grievous bodily harm to the person that he is responding to, proportionality concepts tend to creep into the analysis because the question then becomes, “Well, did you really need to go that far in order to defend yourself? Did you really need to inflict that much injury in order to preserve your own life?” The proportionality concepts come in that roundabout way.

I suspect the same thing will happen under this legislation. I would simply like to see it highlighted more clearly. I feel I am not really answering your question but I am not sure that I can.

Senator Fraser: I have a question based on crass ignorance. What is the difference between reasonableness and proportionality?

Mr. Stewart: In my view, proportionality is an aspect of reasonableness in the law of self-defence. The proposed section says that it is not an offence if you commit an act that is reasonable in the circumstances, and I have no problem with that. I think that is fine. I think that, in the context of self-defence, what is reasonable in the circumstances depends on what is necessary and what is proportionate. That is an idea that I think is deeply embedded in our law.

To give the example that I have used before, the law of assault covers a huge range of conduct, from minor, unwanted touching to life-threatening assaults. If someone is pushing you around in a way that you do not like, that is an assault, but the amount of force that you are permitted, under our law, to use to respond to that is limited by the fact that they are not posing a serious threat to your bodily integrity. You have to moderate your response given that level of threat.

What is reasonable to do in circumstances where you are being pushed around in a way that you do not like is what you need to do to avoid that threat. If it turns out that what you need to do is actually extremely violent, that is disproportionate, and you are not allowed to do it. In the law of self-defence, I understand the ideas of necessity and proportionality to be built into the idea of reasonableness. I believe the same is true under section 1 of the Charter, where the Oakes test for proportionality also has the elements of necessity and reasonableness in it.

Senator Joyal: My question is for Professor Cunliffe. There have been many recent cases involving women who have been victims of violence by their husbands or spouses and who have invoked the defence of losing their mind in reacting. Would you think that section 34, especially (2)(f) or (2)(f.1) — any history of interaction or communication between the parties to the incident — would be sufficient to maintain the defence that we have seen the court accepting as self-defence in going to the point of killing their spouses, especially when there is a history of violence among the two persons?

Ms. Cunliffe: Thank you for the question. I think there is a complicated relationship between the psychological theory of battered woman syndrome and the present and proposed statutory definition of self-defence.

My understanding of the battered woman syndrome is that it is intended to explain the circumstances in which a woman may find herself unable to identify realistic alternatives to what the courts describe as self help and what we would understand as the use of force against their partner.

In particular, Professor Lenore Walker, in the U.S., has studied a number of battered women and reached the conclusion that one of the psychological manifestations of existing in a relationship of intimate violence, particularly in circumstances where a woman may have turned to friends, family and even police for help without great success, is that, over time, they come to the view that no one will help them to escape the violence. It is also wrapped up with a number of systemic factors, such as the lack of access that many women, particularly rural women, have to women's shelters and the question of their financial ability to leave a home. There is a complicated set of factors that may play into a woman's decision that she has no alternative but self help.

In my view, the court does not characterize that as a loss of mind or an insanity-type response but rather a very particular definition of what is reasonable given her circumstances.

I think in the case of a woman who has suffered abuse to the point of true mental illness, in the sense of losing touch with reality, then the existing section 16 defence of non-criminal responsibility by virtue of mental disorder would be more appropriate. I think it is important to see that the court, in the jurisprudence that it has developed, is talking more about a very particular definition of reasonableness that reflects the realities of women's circumstances than about a form of mental illness. I do not think those dynamics are wholly captured within the proposed provisions.

Senator Joyal: The syndrome that a person might develop just in the presence, of another person who regularly assaulted them physically, verbally and psychologically, might lead the person to develop a fear reaction that could prompt that person, at a point, to kill the other person to put an end to that situation. Would you think that paragraph 34(2)(f), for instance, would be enough to explain to a court that that person should not be held responsible?

Ms. Cunliffe: Thank you for the clarification.

I do not believe that, standing alone, paragraphs (f) or (f.1) are quite enough. That is part of the reason why I favour adding, at the very least, physical and mental capabilities to paragraph (e) because we are talking about a form of mental illness that does not rise to the level required in section 16 but that, nonetheless, must be relevant in the circumstances.

Senator Joyal: You think that section 34, in it is enumeration, has enough elements to allow a person to invoke those sections in defence if they were charged with murder?

Ms. Cunliffe: Subject to the amendment of 34(2)(e) to read: “the size, age, gender, mental and physical capabilities of the parties,” I think it has the potential to do so. However, I think that the additional amendments that I have suggested about the history of an experience of abuse and attention to the requirement of the full protection and benefit of the law would ensure, certainly to my satisfaction, that that intention is very clear on the face of section 34. At present, it is embedded within it, and a lot of work needs to be done to find it. It needs to be clearer.

Senator Joyal: You would change (e) to “the size, age, gender, mental and physical capabilities of the parties to the incident.”

Ms. Cunliffe: Yes, I would.

Senator Joyal: As being one element to give weight to the situation that I have described to you, which is more common than one would think, as you know?

Ms. Cunliffe: Yes, indeed.

Senator Joyal: Professor Stewart, you commented on 34(2)(h). It could be invoked, as a defence, by a person who resists arrest. Could you explain further what you meant by that?

Mr. Stewart: I have to admit that I am puzzled by the proposed 34(3), which clearly states that you cannot resist a lawful arrest being carried out by a police officer. What is the relationship between that and 34(2)(h), which says that the defender's knowledge that the use of force was lawful is a factor to be considered. How does that relate? Since 34(3) clearly says that you cannot use self-defence when you are being lawfully arrested by someone doing something that they are required or authorized by law to do in the administration of the enforcement of the law, what is left that section 34(2)(h) applies to? I am sure that this was not the intention of the government when it introduced this legislation, but I wonder if it would come up in situations like the citizen's arrest scenario that we talked about earlier this morning.

Two witnesses this morning had concerns about the training, ability and accountability of private security guards, in particular. Beyond that context, what if I am in a store and am mistaken by the security guard for the other bald gentleman who has just stolen a nice tie from a store? If the security guard then tries to arrest me, and I say, “What are you doing?” and resist, is that the kind of thing that 34(2)(h) is meant to apply to? I am not certain. It may have the effect of creating conflicts of justification where both sides might say, “I was acting lawfully,” the one because they were exercising a power of citizen's arrest and the other because they were defending themselves and had no idea who the person was who was suddenly trying to detain them. I am concerned about how it fits.

More fundamentally, if the defender knows that the other person is acting lawfully, that the security guard has the right to arrest him, then the defender should not resist; he should submit. I do not understand why this legislation leaves it as a mere factor to be considered.

[Translation]

Senator Boisvenu: I understand that the law must be taught in some sort of sterile environment in which victims of crime and the circumstances in which such crimes actually occur have practically no bearing..

In 2008, there were 2,700 home invasions in Canada. Only 58% of police officers report the crimes committed in their jurisdiction to Statistics Canada. We can therefore assume that there were more than 2,700 home invasions. Some 63% of home invasions are perpetrated by strangers and we know that, most of the time, these invasions occur during the evening and at night when there are fewer police resources available.

It is unrealistic to believe that the provincial or municipal governments will increase police resources in proportion to the increase in home invasions— apparently, there has been a 38% increase in home invasions over the last few years. We therefore have to make sure that our laws protect citizens who defend themselves or their property.

Would it not also be unrealistic to believe there we can pass a bill by which the proportionality principle would apply to all 3,500 home invasion cases where a citizen decides to defend himself? Don’t you think it’s a bit unrealistic to find such a definition in a legislation that would protect these citizens?

[English]

Mr. Stewart: I want to be sure that I understood the question correctly. I think that the question was about the number of home invasions in Canada in 2008 and whether we imagine that this bill can adequately protect citizens.

[Translation]

Senator Boisvenu: The weaknesses that specialists have pointed out in this bill relate to the fact that the notion of proportionate force isn’t clearly defined.

I have looked at the number of home invasions in Canada and this crime has increased by 38%. Citizens often have to fend for themselves when it comes to protecting their property because police resources are not available.

I believe that it is unrealistic to think that each time there is a home invasion, a peace officer will be watching the perpetrator committing his crime. Would it not then also be unrealistic to pass a bill that would clearly define the meaning of the use of force that is necessary and proportionate to the threat in all home invasion cases?

[English]

Mr. Stewart: I think that I agree with you, and I will try to explain why or how.

I do not think that it is possible for legislation to define in advance what is proportional, so I do not object to that aspect of the bill. That there is a list of factors to be considered is appropriate and makes sense.

Whether a given act of defending oneself, one's property or one's home is necessary or proportional will have to be determined based on the facts of each case, in light of all the factors that went on. The common law of self-defence has long recognized that the home is a special place in this situation. If you are in a self-defence situation outside of the home, in a bar, perhaps, or on the street, it may be appropriate to leave the scene, to retreat. The common law has long recognized that, when you are in your home, you are not expected to retreat in the face of a threat to your bodily integrity. I am sure that this law is not meant to change that, and I do not know whether it will or not. That is precisely the problem of having a list of factors when you do not know how they will play out. It is not clear how they are going to be interpreted. The law by itself will not protect people from this level of criminal activity, but it should at least define, in a principled way, what rights we have when we do come face to face with those kinds of crimes. I think I am agreeing with you; I am not sure.

[Translation]

SenatorChaput: Will this bill protect, up to a certain point, a person who defends himself against a home invader?

[English]

Mr. Stewart: I think so. Whether it falls under 34 or 35 will depend on the facts of the case. Section 34 is about defence of person, and section 35 is about defence of property; where exactly it will fall will depend.

Even in a case of defence of property, I think that there should be a proportionality requirement. The common law cases I referred to earlier, which say that it is not justifiable to shoot at a mere trespasser, are cases where someone has come onto your property not into your house. They are a trespasser, and you have some right to try to repel them. However, the common law has long taken the view that shooting at them is a disproportionate response. If a person is invading your home, that is clearly a different matter. The level of response that you are entitled to is much higher not only because your house is a more vital part of your property than your land but also because once someone is in our house, it may be easy for you to be under an apprehension that they will harm you. That elevates the stakes.

That is true under the law as it stands now, and it will also be true under this law.

My concerns about this law are not so much about the factors but about the possibility that the requirements of necessity and proportionality may get buried with all the other factors. That is my concern.

Senator Joyal: Professor Stewart, you have not commented, in your presentation, on the impact of that legislation in relation to the private security guard. Are you not concerned by the fact that this bill could be interpreted as giving more authority to security guards than they should be entitled to, considering their lack of training, oversight and so on that we have heard about here from various witnesses?

Mr. Stewart: Let me say that I do share that concern. I simply have not thought about it as much as the other witnesses that you have heard from.

I do share that concern.

Senator Joyal: We have been told that they have multiplied exponentially in the last few years. This bill is supposed to make the law clearer. With that phenomenon, I wonder if, in future years, we will be confronted with new sets of situations that we had not foreseen when we adopted the bill.

Mr. Stewart: I do not think there is any question that it expands the power of private security guards, whether they are highly trained loss prevention officers or less highly trained friends of the person who owns the store. There is no question that this bill will expand their legal powers. I simply have not thought as much about the implications of that as the witnesses this morning have.

Senator Joyal: You have heard the comments about the interpretation of reasonable time.

What is your interpretation on the basis of your study of the jurisprudence? How do you think that the court would interpret that evanescent concept?

Mr. Stewart: The only thing we can say for sure is that they will not give a time limit in hours or days. That is not the way it will work.

Because we do not have a law like this, it is difficult to think of anything that is exactly analogous. There is a section of the Criminal Code that permits videotaped evidence — nowadays we have to say video recorded evidence — to be used if it is taken within a reasonable time of the witness's description of the event. The courts have been quite flexible in interpreting what that reasonable time is. In some cases, it has been not just the day of but sometimes months later that the video is made, and the court has said that is reasonable in this case because of these reasons, because of this vulnerability of the witness, because this is how it came to light.

Whatever the reason is, if there is a reason why it took that long to make the video, then the court says that is reasonable. I think it is unlikely that the court will say 24 hours is the outside limit, for example. It will clearly be more flexible than that. I am afraid I do not have any light to shed on how it will be defined.

[Translation]

Senator Dagenais: Mr. Stewart, I don’t know if you are aware of the fact that in Quebec, Act 84 regulates private security. I don’t know if other provinces have adopted a similar piece of legislation but if not, I urge them to do so. I participated in a parliamentary commission during which it was said that private security agencies were well regulated and had to abide by a code of conduct.

We have heard quite a number of comments concerning the private security industry and, in my opinion, it is important that this industry be regulated. I wanted to mention this, for your information.

[English]

Mr. Stewart: I am not aware of the Quebec act. I am aware there is an act in Ontario, but I do not know how it works or how well it works.

Let me just point out one federalism issue here. Maybe all the provinces will one day have codes regulating the private security industry, and that would be a very good thing, in my view, but that would not have any effect on how this provision operates because it is a federal law and it does not depend on the existence of a provincial law that regulates the private security industry. If I am in a province with a highly regulated private security industry, and I have a small store and I appoint my brother to be the person who will look out for the security of my store, then this amendment to the Criminal Code would be available to my brother, notwithstanding that he has not become licensed as a security guard under the provincial legislation.

Even if the provinces did exactly what we all hope they would do in this area, it will not affect how this will operate.

The Chair: I am afraid we have exhausted our time. I want to thank both of our witnesses. You have been very helpful in our deliberations. We appreciate you taking the time to appear before us today.

Before we adjourn, I want to mention with respect to next week's meeting on Wednesday, Mr. Chen — we have heard quite a bit about Mr. Chen — and his lawyer will be appearing, along with Joseph and Marilyn Singleton from Alberta, who have experienced I gather a somewhat similar situation to that which Mr. Chen faced. The Canadian Convenience Stores Association and other witnesses will be confirmed in the coming days.

Just to let you know, to give you a heads up in terms of where we are meeting, because of Mr. Chen's difficulties with the English language we will probably meet in another location next week in the Centre Block, but we will advise you as we get closer to that day.

(The committee adjourned.)


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