Statement made on 09 May 2012 by Senator George Baker
Hon. George Baker:
Honourable senators, I have just a few words concerning this particular bill. First of all, I want to congratulate Senator Di Nino for the very thorough, comprehensive and necessary speech that he gave. What one says in this place in introducing a bill at second or third reading on behalf of the government is considered to be government policy and the intent of the legislation. He was very careful to go over completely the intent of each section of the legislation.
Before I get to what I really want to say about this bill, the intent of the bill relates to a grocer in Toronto, a Mr. Chen, who was charged with an offence, but everyone knows about this. Before I get to that, changes have been made, as the honourable senator pointed out, in a section of the Criminal Code that deals with the defence of the person — in other words, self-defence.
When you look at all of the cases that are adjudicated now in our courts, it is well established that apart from a consensual fight, the act of self-defence has to be reasonable in that you are defending yourself against an aggressor. As the honourable senator pointed out, now there is a list of things. However, I am not too sure whether that list of things will really help matters.
For example, it says here that in determining whether the act committed is reasonable in the circumstances, the court shall consider the following: the size, age, gender of the parties in the incident — the size of the parties in the incident. If I were to select somebody that I would not want to get into a fight with on the other side, who are the most dangerous people over there?
Senator Angus: Senator Brazeau.
Senator Baker: As Senator Angus points out, I might choose Senator Brazeau, certainly, because he is an expert in the martial arts. I know what honourable senators are thinking: In boxing he is not, and that is true. As Senator Brazeau knows, in a boxing match, you can only hit with that side of a cushion. As you could tell from that famous bout, Senator Brazeau is an expert in the martial arts. If he could only do what he wanted to do, but he could not.
Senator Angus: Hear, hear; we wish he could.
Senator Baker: I could tell he was going through all sorts of contortions trying to remain within the rules.
Senator Carignan: He did.
Senator Brazeau: Rematch!
Senator Baker: Having identified perhaps one of the two most dangerous people, the other person is, of course, very slight and weighs, I imagine, about 140 pounds. He has black belts and yellow belts; he has all kinds of belts. He exercises every day. I would hate to get into a physical confrontation with him; and that is Senator Boisvenu.
When you look at these provisions, and consider the size and age of the individual in the confrontation to determine whether it was reasonable that self-defence actually took place, I think it will foster some debate in committee as to whether that is reasonable.
Honourable senators, in terms of the purpose of the bill, it speaks to only one thing: an act that took place in a grocery store in Toronto. The bill states the following in the summary:
This enactment amends the Criminal Code to enable a person who owns or has lawful possession of property or persons authorized by them to arrest within a reasonable time a person whom they find committing a criminal offence on or in relation to that property.
His Honour is a professor of law who is well known down east and he knows about citizen's arrest under the Criminal Code. The last sentence of section 494(2) states, "may arrest without warrant a person whom he finds committing a criminal offence."
I repeat: "committing a criminal offence."
Senator White, former Chief of Police of the Ottawa Police Service, knows full well that that is also a limitation on police officers. Section 494(2) says, "committing a criminal offence." As His Honour knows well because he taught it many times, section 495 of the Criminal Code, under the heading "Arrest Without Warrant by Peace Officer," says, "may arrest without warrant a person whom he finds committing a criminal offence." It then goes on to limit a police officer's right. It says, "A police officer shall not arrest a person without a warrant for an indictable offence mentioned in section 553." That is another matter. It then says, "an offence for which the person may be prosecuted by indictment or for which he is punishable on summary conviction." That is a hybrid offence. One can be prosecuted either summarily or indictably for an offence punishable on summary conviction.
As Senator White knows, a police officer is extremely restricted under a warrantless arrest. Warrantless arrests and warrantless searches have been judged to be inherently unreasonable and unlawful. Only when it is authorized by law can you do it. Therefore, a police officer cannot do it.
I had a case at my desk by the New Brunswick Court of Appeal, R. v. Dobrotic. It said:
After being arrested in own home and charged with impaired driving and causing a disturbance, accused refused demand for blood samples and was charged with refusing to comply — Accused arrested only for hybrid and summary conviction offences and was not found in act of committing any offence — Accused successfully appealed from conviction for refusing to comply. . . — Subject to specified exceptions, s. 495(2) of Criminal Code prohibits warrantless arrests for summary conviction or hybrid offences unless the accused is found in act of committing them.
That is the law for police officers. Is the law for police officers being changed in this legislation? No. It is only changed for a citizen's arrest — not that much turns on that point. This was the case of Mr. Chen in Toronto.
Honourable senators, I have a copy of the judgment. I read the judgment and the facts of the case. A gentleman by the name of Mr. Anthony Bennett had come into a store and stolen some plants. He ran out through the door. Mr. Chen, the owner of the store, saw him. The next time Mr. Bennett came into the store, and I believe from reading the judgment that he was probably intent on stealing more plants, Mr. Chen confronted him and ran after him. They ran down the street and eventually into an alley. By this time, there were three people chasing the thief who had stolen from the store a week previously.
The police were called. Allow me to read to honourable senators what the police were confronted with. Paragraph 19 of R. v. Chen — Her Majesty the Queen and Jie Chen, Qing Li and Wang Chen; the Ontario Court of Justice, 2010, ONCJ 641 states:
The initial police response came in the form of police cruisers dispatched to the scene based on so-called `hot spot' reports. It meant that officers in the vicinity had to give this the highest priority. As they made their way to the location, they were being updated. Based on four calls made to the 911 operator, they had information suggestive that up to 4 individuals were beating up one person, tying him up and placing him in the back of a white van. The first two officers on the scene, veteran Constable Mouter and newly minted Constable Smith, see a white van moving slowly towards them and about to make a turn. It stops when so directed by Mouter. Out comes a male from the driver side while two others exit from the rear of the van. Inside, the officers notice a male on the floor tied up . . .
Those were the facts. The officers arrested them all, every single one of them. Senator White will tell you that it is normal practice when you are called to the scene and you have tips by telephone. You do not know what is going on, so you arrest everyone in the place.
The judge, properly, makes mention of the big fuss that this created and the fact people across Canada were saying all sorts of derogatory things about the police in Toronto for arresting these people. The judge said, in paragraph 13:
Equally and in similar vein as the demand for Capt. Dreyfus' —
— this is a reference he made earlier —
— return from Devil's Island, persistent voices have demanded a stop to the `persecution' of Mr. Chen this "innocent, hard working, honest businessman". There is even now talk of amending the section of criminal code on citizen's arrest.
Well, guess what? We are amending it.
The judge, in considering why the police officers would have arrested in this situation, said that dispatch has told them that there is an emergency. Two dispatch updates suggested potentially dangerous situations, likely a hostage in the back of a van being spirited away in broad daylight. Mouter and Smith place themselves in harm's way, unaware of what reaction to expect from the van's occupants when they direct the driver to stop. They indeed find someone in the back of the van, tied up and in apparent distress. The judge then says this:
Let us not beat around the bush. This is not the forum for political correctness. Mr. Bennett is black and the other three are Asians. In an urban multicultural environment such as ours one must live under a rock to assume that we all live in perfect harmony or that there are no elements of any ethnic groups, Caucasian or otherwise not dealing in drugs and violence. Toronto the Good like any other large city has an underbelly that does not lend itself to a tourism marketing jingle.
Last I heard the Toronto police do not work for the Toronto Tourism and Convention Bureau. In other words we do not pay them to see us in rose-coloured glasses. We pay them to be suspicious and to initially assume the worse in any situation.
He then says an important thing. This is in paragraph 23:
Once the police have laid the charges, our system has a series of checks and balances. Legally trained professionals, namely Assistant Crown Attorneys and NOT the police determine whether and which charges will go forward for prosecution.
It went forward for prosecution. Mr. Chen and the two other gentlemen, Mr. Li and Mr. Chen, were found innocent of any offence, as they should have been. The alleged thief was given 90 days in jail. That was the end of the matter.
Honourable senators, it happens every day that people are put in jail and arrested for crimes that they are eventually acquitted of. In the circumstances of this particular case, the judge went to great extremes to try to be fair to everybody. As honourable senators know, in the end it is the conscience of the community that determines matters like this. We have two standards, as honourable senators are well aware. One is whether something shocks the conscience of the community; the other is whether it brings the reputation of justice into disrepute. Disrepute to whom? To the general public. The feelings of the general public play into the determinations of the court.
That is the case. What is the reaction?
Well, in the other place, everyone agreed with the bill, except one member — I think it was the Leader of the Green Party. However, I noticed that when the interviews were done with the press and on the record, members of the NDP, the Liberals and the Conservatives suggested that perhaps the Senate could make amendments to the legislation. I have not examined what those amendments would be, but a vote did not take place at any stage of this particular bill. One wonders about this suggestion. You have the original wording in the Criminal Code, section 494, which states that, as I said before, someone may arrest a person without a warrant if they find them committing a criminal offence on or in relation to that property, if they make the arrest at that time or within a reasonable time after the offence is committed and if they believe on reasonable grounds that it is not feasible in the circumstances for a peace officer to make the arrest.
Then, as pointed out by Senator Di Nino, there is a qualification there for greater certainty:
A person who is authorized to make the arrest under this section is a person who is authorized by law to do so for the purposes of section 25.
All section 25 says is, if it is to be provided for in law.
It will be provided for in law now because that is the change that is being made.
I suspect, honourable senators, that there will be some interesting witnesses before the Senate as to whether or not any amendments should be considered to this legislation. I am sure that the police associations of Canada will be interested to know what happens to their authority under section 495 of the Criminal Code, as I referenced earlier, in that they are not permitted under section 495 to arrest anyone unless they find them committing an offence or unless they have committed an indictable offence in the past. If they have reasonable grounds to believe this, the police can do what they call investigative detention. However, that is rather complicated to do. There must be what they call exigent circumstances or a problem with the identity of the person being detained. As Senator Joyal is probably thinking now, what happens to our Charter rights under this proposal? Sections 10(a) and 10(b) of the Charter say as follows:
Everyone has the right on arrest or detention —
It does not say the word "immediately;" "forthwith," perhaps. I am getting cloudy in my old age, but there is a word there that has been interpreted by the Supreme Court of Canada to mean that someone has a right to counsel immediately. You cannot just go out and detain someone without giving them rights to counsel immediately. You are extending, under this law, new arrest rights, but section 494 still demands that it be Charter compliant. The person making the citizen's arrest must give the person rights to counsel.
I would be interested in knowing what the police forces of Canada have to say about this clause. I asked whether section 495 of the Criminal Code was examined in committee in the other place, and they told me no reference was made to 495 and to the rights and powers of police officers.
His Honour knows from reading case law, which I know he does in his spare time, as I have been doing for 40 years, there are many provisions under the law that lead to someone being arrested or detained unfairly. As provided for in our Customs Act, when someone from certain countries passes through Toronto's Pearson International Airport, periodic checks are made. In other words, the person is pulled aside, asked how they purchased their ticket, who paid for it and what they have in their luggage, and then, if deemed necessary, they are handcuffed while their luggage is searched. That is all because of section 98(1) of the act, which gives this power if an official suspects non-compliance with the law. Many of those cases arise, but one wonders what the extent will be of this particular move.
I appreciate the words of Senator Di Nino, because he has put this into context. He has explained the intent, and it is not to go as far as some people would think if they knew the facts as given by the judge in the case at hand that caused this legislation to be brought forward. We look forward to it being dealt with in committee.
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