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Irwin Cotler, MP



Hon. Irwin Cotler – Debate on C-26 – Citizen’s Arrest and Self-defence Act

Posted on December 6, 2011

December 1, 2011  

Hon. Irwin Cotler (Mount Royal, Lib.):

Madam Speaker, I am pleased to rise to participate in this debate on Bill C-26, the citizen’s arrest and self-defence act. While I may not agree with much of the government’s crime and punishment agenda, this legislation is something that I can support in principle, although I do have some concerns that I believe may be able to be adequately addressed in committee.


As my colleagues have noted, this legislation replaces the current Criminal Code provisions on self-defence and defence of property. This change is welcome, because Canada’s self-defence laws are complex and out of date, as the jurisprudence itself has demonstrated. This has been further highlighted by recent high-profile cases that have produced some less than ideal results, as already referenced in the chamber debate this morning. The bill would provide greater clarity, therefore, for prosecutors, judges and juries, as well as for those who may find themselves in a circumstance requiring them to defend themselves or their property.


Simply put, I support this necessary law reform. Indeed, a review and simplification of the entire Criminal Code is needed, as I indicated during the period that I served as Minister of Justice and Attorney General. I trust that the government will commit itself to a comprehensive criminal law reform and in that regard reinstate the Law Commission of Canada, which I and others found to be a very valuable resource in this regard.


While this legislation fixes on one particular section of the Criminal Code, much more remains to be done. It is important to point out, for example, that although it was raised at committee, a textual inconsistency that we have yet to correct in Bill C-10 adds, perhaps inadvertently, another error to the Criminal Code. Indeed, in the committee deliberations we found at least four errors in the French text of the Criminal Code as it is now, and errors with respect to the English and French texts when compared to each other. My point is that if we are going to add another piece to the Criminal Code, as in Bill C-10, we should correct it to the extent that we can.


Returning to Bill C-26, the changes to the self-defence provisions would repeal the current complex self-defence provisions, which are spread over four sections of the Criminal Code, and create one new self-defence provision. Currently sections 34 to 37 of the Criminal Code provide distinct defences to those who use force to protect themselves or another from attack, depending on whether they provoked the attack or not and whether they intended to use deadly force. In that particular regard, the use of deadly force is permitted only in very exceptional circumstances, such as when it is necessary to protect a person from death or grievous bodily harm.


The new legislation in Bill C-26 would, as one section of the Criminal Code alone, permit persons who reasonably believe themselves or others to be at risk of the threat of force or of acts of force to commit a reasonable act to protect themselves or others. The act outlines factors to consider when assessing reasonableness, something I will address shortly.


With regard to defence of property, sections 38 to 42 of the Criminal Code currently outline multiple defences for the “peaceable possession” of property. The defences respecting the type of property relate to whether the property is either personal or real property, the possessory right of the possessor and of the other person, and the issue of proportionality in the threat to the property. In addition, the code requires that one consider the amount of force used when a property defence is raised.


I do not intend to address in particular the legislation with respect to these property defences in particular. Briefly, Bill C-26 would repeal what jurisprudence and experts have held as the confusing defence-of-property language, now spread over five sections of the Criminal Code, and remove in part the distinction between defence of real and personal property.


Under Bill C-26, one new defence-of-property provision would be created, eliminating the many other distinctions that currently exist in the code and arguably serve no purpose but to confuse and confound the matter. Simply put, the new provisions would permit a person in peaceable possession of a property to commit a reasonable act, including the use of force, for the purpose of protecting that property from being taken, damaged or trespassed upon.



In particular, my concern is not with the defence of property provisions, with which I agree, but rather with the new self defence provision, which I believe, while I support again this approach to amendment, may in and of itself arguably be overbroad.


I will state at the outset that it is not as though, without the bill, there is no right of self defence or citizen’s arrest. Both exist as a matter of the common law. Both have been codified as statutes. Indeed, if we did not have a statutory basis, we would have the common law. Statutory reform now would in fact refine and, hopefully in this instance, improve our approach and understanding of this matter.


Primarily, the concern is that the current Criminal Code provision with respect to self defence provides that, “Everyone who is unlawfully assaulted without having provoked the assault is justified in repelling, force by force”. Thereby, confining self-defence to assault situations and noting that it could not have been the result of provocation.


This new legislation would remove the assault requirement entirely, speaking of force or threat of force, and also would remove provocation. This is where I believe that committee study of the bill will be helpful.


What force or threat of force is contemplated by the new legislation? While one may consider that it refers to physical force, we might want to specify that, or we might also want to ask the question whether the legislation also envisages the threat of economic force in a bargaining situation, for example. This is not to say that the current limitation of the Criminal Code is self-defence only in assaults is the correct approach, but it may be that we would inadvertently be opening the door to other claims and concerns.


The legislation offers a list of factors to consider when determining whether or not the action taken was reasonable in the circumstances, and where the current Criminal Code, as I noted, speaks of provocation, something which this legislation would remove, the new legislation includes in its factors the person’s role and the incident.


The question is whether this provision is meant to account for provocation. Might we want to amend it to say, “including whether there was provocation on his or her part”. To my mind, that would clarify the rules and what it is meant to address, as it may be inappropriate to eliminate the entire line of jurisprudence surrounding the notion of provocation.


I would like to focus on some of the factors list, as this is where I believe we may have to address it in committee, though again, as I say, I am supportive of the bill in principle.


The most concerning or disconcerting factor here is found in (e) in what would become section 34.2 of the Criminal Code. The factor, again with respect to determining the reasonableness of someone’s self defence action, refers to the size, age and gender of the parties to the incident. Size and age I can appreciate. As one of the older members in the House, I can attest that people sometimes make certain assumptions about age, including sometimes about the imminent retirement of a member, which may be far from the mark.


The use of gender in this factor warrants a certain approach or critique. Indeed, some might call it a feminist critique, but I propose it just as a critique on the merits. What does “gender” itself have to do with reasonableness? If we are trying to address a size imbalance between the parties to a incident, is not the size factor itself sufficient? If we are trying to address a power or strength imbalance, might we use those words or some other phrase such as perception of potential force that could be exerted. As soon as we put in gender, we may be opening the door to the resurgence of a series of myths and stereotypes, which have, regrettably, undermined our criminal law, as we have observed most notably in the area of sexual assault.


This would open the door to all sorts of assumptions about gender playing out, either in police decisions to prosecute or in judges’ rulings and the like.


The concern here is that we may see some relying upon and the furthering of the outdated notion of a weak, defenceless woman. If she is unarmed, we have a factor, as set forth in (d), whether any party to the incident used or threatened to use a weapon. Again, the question is what gender may be adding.


Its presence in the statute implies that there is some fundamental difference between capacities of men and women to protect themselves. While I remain unconvinced that this itself is something we should be addressing in this fashion, the point is that if there is a size or power or weapons imbalance, that is what the issue is, not the gender of the person.



On this point, too, we may have certain stereotypes about masculinity as well. Some men who are attacked or feel an attack is imminent, may respond aggressively, others more passively. Again, the question is whether this factor implies that only one type of response is appropriate. I think this is something that may warrant addressing on deliberation in committee.


A final factor that we may want to address is in (f), which refers to the nature, duration and history of any relationship between the parties to the incident, including any prior use of threat or force and the nature of that force, or threat. I can imagine that this could raise difficulties in conjugal relationships where there is a long and complex history between the partners and the focus of the police service or the judge may be on the physical relationship or force, not taking into account considerations like economic dependency or psychological force that are also important.


Indeed, I have a particular concern here that couples that may have had a disturbing relationship over time and then one partner crosses the line, a judge may pass it off as par for the course instead of addressing it as a serious act of conjugal violence. Again, this is something best addressed in committee.


The final concern I have with the bill has been raised by numerous academics and has been raised this morning as well. It is the potential risk for vigilantism, which we certainly do not want to promote this.


With reference to my comments earlier about the scope of self-defence no longer being just assault and the addition of the word “threat” of force, it may be that we are somewhat overbroadening this bill such that we may give a pass to those who really should not be engaging in matters best left to our informed and uniformed first responders.


I welcome this modification to Canada’s criminal law. It would clarify and streamline self-defence and defence of property. However, as I mentioned, I have some concerns with some of the factors enunciated in this legislation. It is my hope that, through thoughtful and informed deliberation and debate in committee, we may be able to address these issues and favourably resolve them. The bill can then enjoy the full support of the House, as it now has, as a matter of principle, but then can be more fully supported with regard to any considerations that may raise some matters for concern.


Mr. Matthew Dubé (Chambly—Borduas, NDP):

Madam Speaker, the issue addressed by this bill is so delicate that it is important to obtain expert legal opinions. My colleague from St. John’s East spoke about the importance of studying this bill in committee to find just the right balance in order to ensure that it does not lead to the abuse of the defence of property and the person.

Could my hon. colleague tell me how we could go about finding this balance? We must protect people who want to defend themselves and the rest of the population in order to ensure that abuses do not occur and that people do not become de facto police officers.



Hon. Irwin Cotler:

Madam Speaker, I tried to include these considerations in my remarks. The question is whether the response is rational and proportionate. This bill is an improvement over the existing legislation, which, as the case law shows, includes some vague and complex provisions. It is thus very important to have a debate to talk about the principles of the bill and to discuss the bill in committee, where witnesses can come and share their expertise on these issues.


Mr. Blaine Calkins (Wetaskiwin, CPC):

Madam Speaker, I appreciate my hon. colleague’s wisdom and guidance in this. He is very experienced. I appreciate that he is bringing these concerns forward prior to his pending retirement. I am just kidding.

The reality is that this is an issue that is near and dear to the hearts of my constituents. There have been several occurrences in my riding. I noticed that he talked a bit about some of the exceptions he had. I am wondering if, from his perspective, he has any experience with this.

I represent a fairly large rural constituency where response times by law enforcement officials are somewhat less than what one would expect in a municipal area. I am wondering if the member would like to speak to that and if he has any issues, concerns or prior knowledge with respect to self-defence and citizen’s arrest provisions. Also, does he have any foresight or wisdom he could share with the chamber in regard to situations where someone might be 45 minutes to a couple of hours away from having a law enforcement officer respond to an emergency situation?


Hon. Irwin Cotler:

Madam Speaker, I do think those are considerations that are important because different issues can play out in different contexts in different places. Therefore, the notion of what constitutes reasonableness may vary given the context, both geographical and otherwise, as well as what may determine proportionality, these being the two main criteria in this regard.


I will take this opportunity to address another factor that may pose a concern, which is (h), which reads:


whether the act committed was in response to a use or threat of force that the person knew was lawful.


The question is whether “knew was lawful” is enough or should it be “knew or ought to have known”.


I can imagine a situation with an undercover police officer and the person saying that he or she did not know the action was lawful and therefore he or she was justified in assaulting the officer in self-defence. Again, this may be another factor we may want to clarify. Therefore, should “including whether the person identified his or her lawful authority” be added, or is “knew or ought to have known” be sufficient?


The question points out, and I have used this particular consideration or factor by way of response, that there are a number of issues that will be best addressed in committee.


As the Supreme Court said, the contextual principle is crucial with regard to the interpretation and application of legislation and would it apply with regard to that geographical context and in relation to that contextual principle and the application of the notion of reasonableness and proportionality.

Mr. Jack Harris (St. John’s East, NDP):

Madam Speaker, I know we will be studying this in committee in great detail but I noticed the term “proportionality” is relevant to the defence of persons. Does the member believe there is a place for a similar concept in defence of property?

Obviously, some people have different notions of what is the proper way to defend one’s property from a trespasser. Is the word “reasonable” enough or should we have more? Is that something that the member would give some consideration to?



Hon. Irwin Cotler:

Madam Speaker, as I mentioned, I was addressing most of my remarks to the issue of self-defence. I was not addressing the matter of property, which I felt was not the particular provisions that were eliciting concern.


I do believe the issue of reasonableness, as my hon. colleague mentioned, while being the generic principle, would apply clearly to both self-defence and in relation to property and proportionality in matters of self-defence.


I also tend to regard the notion of proportionality as being a relevant principle, if not also a generic principle and may also be applicable in matters of property as it is with regard to self-defence.

Ms. Elizabeth May (Saanich—Gulf Islands, GP):

Madam Speaker, I appreciate the speech by the hon. member for Mount Royal, particularly for bringing us back to the need for broader Criminal Code reform, particularly to look at bringing back the Law Reform Commission of Canada.

We have a situation where we generally agree with the objects of the bill, as I know the hon. member for Mount Royal and I did back in June when we looked at the megatrials bill. The efforts made to improve that bill so that it would work were gavelled out of order and we went right through to passing a bill with no changes.

We have just experienced the same thing with Bill C-10. The efforts made to improve that bill in the government’s interest and toward the goals that it put forward were rushed through and, unfortunately, the amendments put forward yesterday by the Minister of Public Safety, which were so closely parallelled with what the hon. member for Mount Royal had put forth before, were ruled out of order, and appropriately, by the Speaker.

What chance do we have of his very sensible approaches being taken seriously at committee? Does he have any indication that we will have a different atmosphere around the committee with respect to Bill C-26 from what we have had with previous bills in this session?


Hon. Irwin Cotler:

Madam Speaker, the hon. member has been very attentive and present at the deliberations of the Standing Committee on Justice and Legal Affairs, and knows of what she speaks.


I hope that when our committee deliberations return, we will do so in a way that permits for the informed and considered appreciation of legislation before us. I still believe the real problem with regard to the deliberations on Bill C-10 was that it was not, as some feel when they look at it, one bill; it was nine bills. They should have been unbundled. We should have addressed each of them separately.


My colleague mentioned the justice for victims of terror bill. I proposed four amendments, which were rejected by the committee. The government then reintroduced those same four amendments that it had rejected in committee. The Speaker, understandably, ruled them out of order. Maybe if we had time and consideration to put on that one bill alone, we could have come up with a better bill. The bill, as I have said, is transformative legislation that would have had a positive historical impact to give victims of terror a civil remedy that they had not yet had. It would have allowed them to hold their perpetrators liable.


I believe that is the same with the other eight bills that we had to consider altogether in one big bundle.


I would like to see the government take that principle of bundling and attach it to the whole question of a comprehensive reform of our criminal law, which is long overdue. Also, we need to reinstate the Law Commission of Canada to assist us in this very compelling, overdue and necessary task of comprehensive law reform in our country.

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