Debates of the Senate (Hansard)

1st Session, 41st Parliament,
Volume 148, Issue 89

Tuesday, June 12, 2012
The Honourable Noël A. Kinsella, Speaker

Criminal Code

Bill to Amend—Third Reading

On the Order:

Resuming debate on the motion of the Honourable Senator Di Nino, seconded by the Honourable Senator Wallace, for the third reading of Bill C-26, An Act to amend the Criminal Code (citizen’s arrest and the defences of property and persons).

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.

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.

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?

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.

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

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.

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).

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

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.

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.

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.