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| Patrick J Ducharme |
In June 2012 a citizen’s power to arrest was expanded. The powers are contained in section 494 of the Code. The changes to section 494 may appear minor, but can have a significant impact in relation to private citizens arresting “within a reasonable time after the offence is committed.” The amendments relax the requirement that an arrest must be made immediately following the commission of the offence but retain the condition that the arrestee is, at the time of arrest, “found committing” a crime. The citizen’s power to arrest for past offences is limited to cases where the police would be unable to arrest the suspect. More specifically the section requires that it “not be feasible in the circumstances for a peace officer to make the arrest.”
Although the changes appear to be minor, they have expanded the arrest powers of not only the “regular” private citizen but also private security guards, whose authority to arrest also depends on the arrest powers outlined for private citizens. The impact of the changes therefore must be considered from the point of view of two very different types of private citizens: regular private citizens and those hired to provide private security for others.
As a practical matter individuals making arrests as private citizens may be subject to lawsuits seeking damages in tort for assault, battery, forcible confinement, imprisonment or wrongful arrest. If an arrest by a private citizen exceeds the power conferred upon her by section 494, the private citizen could also face criminal charges for forcible confinement and/or assault.
The amendments to the power of the citizen to arrest were introduced after a Canadian store owner, David Chen, was charged with assault and forcible confinement when he performed a citizen’s arrest outside his store. He had observed the man on his security camera stealing his plants. The thief made an initial escape but returned to the scene of his crime sometime later. Mr. Chen recognized him and with the assistance of others grabbed the man, bound him, and, held him captive in a van off-premise for several hours until the police arrived. Mr. Chen was acquitted. But Mr. Chen was only acquitted because the court made a finding that the thief’s return was for the purpose of stealing more plants belonging to Mr. Chen. He was therefore lawfully able to make the arrest because the arrestee was, “engaged in a continuing offence.” Many amendments attempting to respond to a single event create unintended consequences. This appears to be one such example.
The amendments appear to relate directly to the facts of the Chen case. They permit a person in lawful possession of property the power to arrest an individual who is found committing an offence on the property, and, make an arrest within a reasonable time after the offence is committed and they believe on reasonable grounds that it is not feasible in the circumstances for a peace officer to make the arrest. The amendment begs the question of whether a private citizen improperly arrested pursuant to this provision will be able to use infringements of classic Charter rights. The Charter deals specifically with infringements of rights by government officials, not private citizens.
Continued in Part 2…
The above is the an excerpt of Patrick J Ducharme's book, Canadian Criminal Procedure, available at Amazon or in bulk through MedicaLegal Publishing along with Criminal Trial Strategies.
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