Debates of the Senate (Hansard)

1st Session, 41st Parliament,

Volume 148, Issue 89

Tuesday, June 12, 2012

The Honourable Noël A. Kinsella, Speaker

Hon. Mobina S. B. Jaffer: Honourable senators, I rise today to speak at third reading of Bill C-26, regarding citizen’s arrest and the defences of property and persons.

[English]

This bill amends sections of the Criminal Code to authorize property owners to carry out a citizen’s arrest, within a reasonable time, of a person whom they find committing a criminal offence on or in relation to that property. It also seeks to clarify and update provisions of the code that deal with self-defence.

[Translation]

I support Bill C-26. However, there are three main observations I would like to bring to your attention, honourable senators, in response to the study conducted by our committee: that one of the bill’s clauses promotes gender stereotypes; that the bill does not take into account the confusing and impractical elements of section 494 of the Criminal Code; and that the state must ensure that individual rights guaranteed by the charter are respected, even when functions of the state are delegated to private citizens.

My first observation has to do with paragraph 34(2)(e) of the bill. I quote:

In determining whether the act committed is reasonable in the circumstances, the court shall consider the relevant circumstances of the person, the other parties and the act, including, but not limited to, the following factors . . . (e) the size, age, gender and physical capabilities of the parties to the incident;
Honourable senators, why is the gender of the parties to the incident a factor in deciding whether the act committed is reasonable?

[English]

In addition to the size, age, gender and physical capabilities of the parties to the incident, clause 34(2) of the bill also considers “the nature of the force or threat,” whether the use of force was imminent and whether “there were other means available to respond to the potential use of force, the person’s role in the incident, the use of a weapon, the relationship and history of the interaction between the parties, the nature and proportionality of the person’s response, and whether the act committed was in response to an apparently lawful use or threat of force.

While there are often fundamental differences of physical size and strength between the sexes, these differences are already ostensibly considered; size, age and physical capabilities are also listed among the factors.

The inclusion of “le sexe” among the factors, where it is intended only to represent biological differences, would be at best redundant.

The French version of the bill, as I have already noted, reads “le sexe . . . des parties en cause.” The English version, however, does not cite the sex of the parties to the incident as a factor. It specifies that the gender of the parties to the incident should be considered. As honourable senators know, in English, “sex” and “gender” mean two different things. The inclusion of gender or “le sexe” among the factors, rather than connoting fundamental biological differences between the sexes, suggests cultural or social distinctions. It is an extension of the gender stereotyping that furthers systemic discrimination.

Honourable senators, gender should not be used in our bills. This is exactly the kind of discrimination that section 15(1) of the Canadian Charter of Rights and Freedoms seeks to extinguish. We would all be mindful of our responsibility as legislators to represent and advance the core Canadian values that the Charter represents, equality rights among them.

Superintendent Greg Preston, who represented the Canadian Association of Chiefs of Police at our committee hearing, testified regarding the inclusion of gender among the factors to be considered:

I will be very honest. I was quite surprised to see that listed. . . . I thought of size and age, and physical capability was added, but those are all relevant considerations. By itself, I am not sure how gender would assist. . . . Gender by itself really should not be a consideration, by itself. It is the other aspects that one looks at.

Honourable senators, as Minister Nicholson indicated when he appeared before the committee, the list of factors included in clause 34(2) is not exhaustive. That does not change that including the sex of the parties to the incident among the factors to be considered perpetuates a stereotype.

The physical capabilities of the parties, the relationship between the parties, battered wife’s syndrome, factors other than sex included in clause 34 provide opportunity for discretion and due consideration of these kinds of particular circumstances.

The minister indicated that the government “was not trying to limit the factors to be considered,” and that the factors should be “as expansive as possible.” Regardless, honourable senators, there is no reason for this bill to promote gender stereotyping, indirectly or otherwise.

My next point is on indictable offences versus offences punishable by way of summary conviction.

[Translation]

My second observation has to do with subsection 494(1) of the Criminal Code and the category of the offence committed.

[English]

Bill C-26 does not address subsection 494(1) of the Criminal Code, which reads:

Any one may arrest without warrant

(a) a person whom he finds committing an indictable offence; or

(b) a person who, on reasonable grounds, he believes

(i) has committed a criminal offence, and

(ii) is escaping from and freshly pursued by persons who have lawful authority to arrest that person.

Honourable senators, as you are aware, offences can be tried summarily or by indictment. The difference involves a considerable degree of nuance. While many criminal offences are also hybrid offences — offences that may be treated as either indictable or summary, subject to the discretion of the prosecutor — the legislative text creating the offence is generally what determines whether the offence is indictable, summary or hybrid.

The difference between an indictable offence and a summary offence is far from readily apparent. There is no obvious difference of the type or kind between the two categories.

As the Supreme Court of Canada said in R. v. Macooh [1973]:

. . . the division which currently exists in our law between indictable offences and other categories of offence only very imperfectly reflects the severity of the offence.

Honourable senators, my concern is this: How will a private citizen, even if this legislation is passed, know whether they are legally permitted to perform a citizen’s arrest? This was among the concerns raised by Superintendent Preston. This legislation was intended to clarify the legal context in which a citizen may perform a citizen’s arrest.

During our committee’s hearing, Rick Woodburn, President of the Canadian Association of Crown Counsel, commented regarding the distinction between categories of offences:

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

These are the words of a Crown counsel who represents the government, a person who should know the difference between indictable and summary offence.

Paul Calarco, a member of the Canadian Bar Association, a lawyer, further commented regarding the ability of the citizen to distinguish categories of offences:

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

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

(1540)

Honourable senators, even if this bill should pass, the citizen would need to first establish in the heat of the moment, acting instinctively, whether the offence they are witnessing is an indictable or a summary offence. As Joseph Singleton, a homeowner who had been a victim of a break and enter, testified in front of the committee regarding the bill:

. . . I feel that undefined grey areas still exist. . . . upon hearing a startling noise or seeing something out of the ordinary, a concerned citizen or homeowner would instinctively investigate to protect their property, to quell curiosity. . . .

Honourable senators, it is not reasonable to expect the citizen or homeowner to investigate by first verifying with their easily accessible copy of the Criminal Code to ensure that the offence they believe to be witnessing is indeed an indictable offence. When a person feels threatened, they act instinctively. This bill fails to remedy this reality.

Let me provide honourable senators with an example, one that Superintendent Preston highlighted during his testimony, which reasonably corresponds to the example of a startling noise or something out of the ordinary that Mr. Singleton referenced. Section 177 of the Criminal Code reads as follows:

Every one who, without lawful excuse, the proof of which lies on him, loiters or prowls at night on the property of another person near a dwelling-house situated on that property is guilty of an offence punishable on summary conviction.

I repeat: “an offence punishable on summary conviction,” honourable senators.

Let us assume that the property in question does not belong to the person who witnesses the offence. Maybe the person is visiting a family member, socializing at a friend’s place or staying with a neighbour. This hypothetical case is an example of self-defence, not defence of property.

Some of us in this chamber are trained lawyers and, in the heat of that moment, when some unidentified person is prowling outside, perhaps even fearful for our loved ones’ safety, we might forget what exactly section 177 says regarding whether night prowling is an indictable offence or a summary offence.

There is no provision in Bill C-26 that addresses this confusing and impractical element of the Criminal Code, nor the contradiction between subsections 494(1) and (2).

[Translation]

The third point I would like to raise is the following. The Charter guarantees have to be considered in the context of all arrests.

Last Thursday, our committee received a written submission from Abby Deshman, Director of the Public Safety Program at the Canadian Civil Liberties Association

[English]

The Canadian Civil Liberties Association’s submission was received toward the end of our committee’s deliberations, but I believe it raises some very pertinent points regarding the maintenance of universal individual rights and freedoms. I will share an excerpt from their letter:

As purely “public” entities are supplemented or replaced by private bodies, we must be vigilant to ensure that individuals’ fundamental rights, those which protect them against excesses that may accompany the concentrated power typically wielded by government actors, remain meaningful when faced with corporate entities exercising coercive powers initially defined and delineated by the state. . . .

The Alberta Court of Appeal has consistently held that the citizen’s arrest power is a delegation of a government function and therefore subject to the Charter. The power to arrest — to physically detain another private individual contrary to his or her wishes — is an extraordinary coercive power that is overwhelmingly reserved for government actors. It is granted by the government in order to preserve public order of the “Queen’s peace.” Arrest powers are delegated to private individuals in a narrow set of circumstances. Police officers may exercise this power in a wider range of contexts. In both cases, however, the authority to restrict the freedom of another individual flows directly and solely from the state. The fact that the arrest may be initiated by a private individual as opposed to a state employee does not change the core governmental nature of this activity.

[Translation]

There is a serious deficiency in the legislation before us. Jurisprudence is not definitive on the issue of applying the Charter in the context of a citizen’s arrest.

[English]

As Ms. Deshman argues, however, we must be very clear in stating that the Charter applies in all circumstances.

This legislation seeks to establish an appropriate legal context for the delegation of a state function to private citizens. There are significant legal and training deficiencies, however. This bill neglects to ensure at all times the maintenance of all citizens’ Charter rights. More importantly, however, private citizens to whom the arrest power has been delegated in this bill likely do not possess the appropriate — may I have five more minutes, please?

Hon. Senators: Agreed.

Senator Jaffer: — appropriate policing and legal training to ensure that Charter rights are consistently respected and protected. As Ms. Deshman writes:

Charter guarantees . . . should be considered in the context of any arrest, detention or search and seizure — regardless of whether the actor is a police officer, private security guard, or independent individual.

Honourable senators, I support the principle and overall intent of this legislation. I believe, however, that the following points should be kept in mind: that Parliament must ensure that legislation does not promote gender stereotyping; that existing sections of the Criminal Code, namely section 494, which specifies that the offence must be an indictable offence, require further clarification and practical consideration; that arrest power is fundamentally a government function that must only be delegated to citizens in extraordinary circumstances; and that individual rights as entrenched in the Charter must be protected in all circumstances.

[Translation]

Hon. Joan Fraser: Honourable senators, I would like to raise just two points in this debate. Before I begin, I would like to commend all those who spoke before me.

[English]

The quality of their interventions has been remarkable, and I think all three of them have made very important points.

I want to address two points. The first has to do with the citizen’s arrest provisions of this bill. I believe that there is, in fact, less to the provisions of this bill than the public eye has seen in them.

It is widely believed that the case of Mr. David Chen, to which reference has been made, was the spur for this bill to come forward at this time. As Senator Baker noted in quoting from the judge’s decision, that case became a matter of great public interest and, indeed, of public outrage. I would commend to all of you the decision of the judge in the Chen case. It is absolutely fascinating. It is completely free of legal gobbledygook. Anyone can read it, even me. It makes some very important points in connection with this bill.

There were essentially two big issues that the judge addressed, only one of which, in my view, is addressed by this bill. The first was the question to which Senator Baker referred of whether it was all right for Mr. Chen to apprehend the thief some time after the theft had been committed, when he had a chance, when he saw him again. The judge, as Senator Baker said, solved that particular problem by saying it was all part of the same offence. The bill has clarified that judges do not have to stretch that far and that you can make a citizen’s arrest within a reasonable time after the actual offence has been committed, so that will now be clear.

The second great issue, though, was whether Mr. Chen was guilty of forcible confinement and other things that he was charged with — his conduct after he and his friends apprehended the person that they were arresting, as honest citizens of Canada. Senator Baker referred to it: tying the man up, throwing him in the back of the van and driving away, or starting to drive away.

(1550)

The judge did not really address that. The judge said, in almost as many words, that the testimony before him had been so conflicting and so contradictory that he could not know exactly what had happened or why and that, therefore, nothing had been proven and, in this country, one is innocent until one has been proven guilty. He was thereupon required to find Mr. Chen not guilty.

However, he then went on to say that if he were in Scotland, he would be able to say “not proven.” In Scotland they have this third possible verdict. One can be guilty, not guilty or not proven.

That was kind of interesting, and it left it all up in the air about the actual nature of Mr. Chen’s conduct. As I read this bill, I did not think it did anything at all to address that issue, which was in fact the issue that had caused the public outrage: Why was Mr. Chen being arrested?

When Mr. Chen appeared before us, he came accompanied by his lawyer, and I asked her if she thought this bill would protect Mr. Chen’s conduct, and her answer was no, she did not think so. I think she is right. I just wanted to make that point, in case any of honourable senators were talking with members of the public about the citizen’s arrest portion of this bill.

The other element I would refer to is the self-defence provisions. I was particularly anxious to have clarity on the impact of the proposed new self-defence provisions on what are often known as battered women defences, basically concerning spousal assault and to some extent dating violence, but mostly spousal assault.

This is a serious problem in this country, honourable senators. In 2010, police reported approximately 48,700 victims of spousal violence in this country and, if you hear people talk about the battered women defence, it is not because men are immune from spousal violence. Some men do suffer violence at the hands of their spouses, but women aged 15 and older in 2010 accounted for 81 per cent of all those police-reported victims.

Now, in the Lavallee case, to which Senator Di Nino and I think others have made reference, back in 1990 the Supreme Court addressed many of the myths about spousal abuse, spousal violence and self-defence arguments that could be brought in those cases by the abused spouse. Ms. Lavallee was a woman who had been repeatedly and severely abused, and one night her partner told her that later that night he was going to kill her, and she believed him, so she shot him, dead. This case went all the way to the Supreme Court, and it was a landmark judgment instructing courts to take into account expert testimony about the effect of being an abused spouse, a feeling of having nowhere to go, nowhere to turn, no escape, and sometimes being driven to commit very serious violence in order, one believes, to defend oneself, even if that defence is not specifically necessary because one is not being abused at that precise moment.

I was quite concerned about the impact of two of the factors that judges are told to take into consideration, because I wondered if they might be contradictory, and Senator Jaffer referred to these. In proposed section 34(2)(b), the judges are asked to take into account if the circumstances are appropriate, the extent to which the use of force was imminent and whether there were other means available to respond to the potential use of force. That was clearly the one that made me wonder if we were weakening the grounds of defence for battered women.

I was only partly assuaged by the existence of proposed section 34(2)(f) which says the judge should take into account 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.

Therefore, I asked about how these two possibly apparently contradictory elements might play out. I asked officials from the Justice Department when they appeared before us how we should understand the interplay between these two things, and I think the answer that was given is worth reading into the record. It comes from Ms. Joanne Klineberg, Senior Counsel, Criminal Law Policy Section, Department of Justice Canada, who said:

Both of those factors are derived almost directly from the Lavallee case, which was the leading case from the Supreme Court.

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

That is essentially what 34(2)(f) is trying to get at; in determining what is reasonable you would have to consider the history of the relationship. Another thing the Supreme Court decided in that case was it had previously been assumed — although it was never in the wording of the Criminal Code — that the imminence of the assault was a necessary precondition for self-defence to be successful. The court in that case said that is an assumption; the paradigm self-defence case is one where it is eminent.

The transcript says “eminent” but the word was in fact “imminent.” It continues:

However, a battered spouse situation is exactly one where the assault might not be imminent, but nonetheless the person would not reasonably feel themselves taking into account the history to have any option but to do what they did.

The factor that is enumerated as (b) was also specifically designed to reflect that aspect of the Lavalleecase, by saying it is a factor to consider, the extent to which the attack was imminent, which in and of itself is meant to signal that imminence is not a requirement. If imminence were a requirement, it would be in 34(1) —

This is what Senator Di Nino referred to yesterday when he was setting out the act’s absolute requirements for a self-defence.

— but because it is in 34(2) as a factor to consider, as opposed to a requirement of self-defence, it signals that imminence is a factor to consider and the person’s perceptions about other options they might have had is also a factor to consider. I think our view would be that both of those factors are entirely consistent with the reasons of the Supreme Court in Lavallee.

Honourable senators, given that, as Senator Baker has so regularly instructed us, we know reference is sometimes made to debates in this chamber when thorny issues of law are being considered, I did think that was worth putting into the formal record of the Senate.

Hon. Serge Joyal: If there is time left, I would like to put a question to the honourable senator. Would a question be accepted?

Senator Fraser: With some trepidation.

Senator Joyal: Unfortunately, I was not here last night when Senator Di Nino made his comments in support of the report of the committee. I attended many of the committee hearings, and I think it would be proper to put on the record the conditions this bill will create for the security agencies that are multiplying exponentially these days and the particular conditions underwhich they operate and the context in which this bill can be called into action.

(1600)

We all know that many of the large department stores and shopping centres have security agencies monitoring the premises on a television set from a remote area, watching where customers and visitors move around. Once the person who is responsible for monitoring activities sees someone shoplifting, that person would contact an agent on the floor and give a signal to that person. For example, if it was someone with a red baseball cap, blue jacket and a pair of jeans, that description would be provided if that person was shoplifting a book, for instance, or a CD, to put it into plain terms.

The agent on the floor who did not witness that person shoplifting, but based his or her intervention on the description of the person as seen on a television set quite remote from the area, would try to intercept that person somewhere, either at the exit or by rushing the counter where the situation happened. In so doing, that agent would not give the person a warning.

Section 10(1) of the Charter prescribes any agent or person making an arrest, such as Senator Dagenais’ or Senator White’s people, must immediately inform a person of the reason why they are being arrested. This is a compulsory Charter obligation. If that warning is not given, the charge is dropped. I am sure Senator Dagenais could certainly tell us about many situations that have happened that way.

In the shopping centre scenario, we have an agent who does not inform the person immediately why they are being arrested. That information would be provided once a police officer is called to the premises; the police officer would then inform the person.

The reason that section of the Charter is so important is because it protects people from self-incrimination. A person not knowing why he or she is being arrested can incriminate themselves, thus of course not using the defence that is within his or her rights as provided for in the Charter.

In my opinion, this is a very important issue that we were informed of during the committee hearings. My colleague Senator Di Nino was there when we raised that issue.

I know that Senator Fraser’s time has lapsed. Perhaps she could ask for five more minutes and she would be able to comment.

Senator Fraser: May I have five minutes, honourable senators?

Hon. Senators: Agreed.

Senator Joyal: I will conclude, honourable senators. Thank you for your leniency.

Could Senator Fraser determine how that concern of the members of the committee could be addressed and how it could find itself in the courts certainly sometime soon? This situation is now so common everywhere that sooner or later it will find its way to the courts, in my opinion.

Could the remarks made by the experts we heard from, especially the police officers, be shared with the chamber?

Senator Fraser: Indeed. As Senator Di Nino indicated yesterday, we did hear from one witness that there are now attempts under way for the federal and provincial attorneys general to figure out systems of regulation that would cover, among other things, this precise point. However, that only came from one witness. The same witness said that, in Ontario, it is already automatic for agents to read rights as soon as an arrest is committed.

Other witnesses, however, with experience in other provinces, were much less definite on this matter and did raise concerns. I think Senator Jaffer also alluded to these concerns in her remarks.

I think there was a sense among members of the committee, having heard the testimony, that it would be appropriate — and Senator Di Nino did allude to this yesterday — for the federal and provincial authorities to see if they could come together and agree upon standards that would ensure that everywhere in Canada private security companies and their agents are instructed in and required to respect the Charter.

One of the things that struck me was that although serious security companies do give some training to their employees, it did not sound to me as if it was very much. Sometimes it is one day; sometimes it is maybe a little more. However, it was nothing compared to the degree of instruction, for example, that police officers must undergo.

I do not think I am misstating the sense in the committee that there was some view that this was probably worth at least some federal-provincial exploration. I do not want to go any further than that because not all members of the committee wanted it to go further than that; some did. To the extent I have tried to indicate, there was a sense that this was at least a potential problem. If it exists, it is a serious problem. Clearly, Charter rights are among the most serious things that the country and Parliament could ever address.

Some Hon. Senators: Question.

The Hon. the Speaker: Is it your pleasure, honourable senators, to adopt the motion?

Hon. Senators: Agreed.

(Motion agreed to and bill read third time and passed.)

 

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