Backgrounder: Reforming Citizen’s Power of Arrest and Self-Defence and Defence of Property Provisions

This legislation proposes to expand the legal authority for a private citizen to make an arrest within a reasonable period of time after they find a person committing a criminal offence either on or in relation to their property. This expansion would not affect the role and responsibility of the police. The preservation and maintenance of the public peace remains the responsibility of police.

The legislation would also bring much-needed reforms to simplify the complex Criminal Code provisions on self-defence and defence of property. It would also clarify where reasonable use of force is permitted.

CITIZEN’S ARREST

Proposed Amendments

Amendments to the Criminal Code section 494(2) on citizen’s arrest would authorize a private citizen to make an arrest within a reasonable period of time after he or she finds someone committing a criminal offence that occurred on or in relation to property. This power of arrest would only be authorized when there are reasonable grounds to believe that it is not feasible in the circumstances for the arrest to be made by a police officer.

Reasonable Use of Force

This legislation would make it clear, by cross-reference in the Criminal Code, that use of force is authorized in a citizen’s arrest, but there are limits placed on how much force can be used. In essence, the laws permit the reasonable use of force, taking into account all the circumstances of the particular case. A person is not entitled to use excessive force in a citizen’s arrest.

Important Considerations

A citizen’s arrest is a very serious and potentially dangerous undertaking. Unlike a police officer, a private citizen is neither tasked with the duty to preserve and maintain public peace, nor properly trained to apprehend suspected criminals. In most cases, an arrest consists of either actually seizing or touching a person’s body in an effort to detain them, or where the person submits to the arrest.

A citizen’s arrest made without careful consideration of the risk factors may have serious unintended consequences for those involved. When deciding whether to make a citizen’s arrest, a person should be aware of the current law (see below) and consider the following:

• their safety or the safety of others;
• reporting the information to the police, which is usually the best course of action, instead of taking action on their own; and
• ensuring that they have correctly identified the suspect and their criminal conduct.

The Current Laws

Under section 494(1), anyone may arrest a person whom they find committing an indictable offence or a person who, on reasonable grounds, they believe has committed a criminal offence and is escaping from and freshly pursued by persons who have lawful authority to arrest that person.

Section 494(2) of the Criminal Code, which is the provision proposed to be expanded by this bill, currently provides that anyone who is either the owner or, in lawful possession of, or has been authorized by the owner or the person in lawful possession of property, may arrest a person they find committing a criminal offence on or in relation to that property.

"Finds committing" means situations where the accused is "caught in the act" of committing the offence. This concept extends to take into account a situation where the accused has been pursued immediately and continuously after they have been found committing the offence. Also, the law requires that when a citizen’s arrest takes place, the individual must be delivered to a police officer without delay.

SELF-DEFENCE AND DEFENCE OF PROPERTY

Proposed Amendments

New Criminal Code provisions are being proposed to clarify the laws on self-defence and defence of property so that Canadians — including the police, prosecutors and the courts — can more easily understand and apply the law. Clarifying the law and streamlining statutory defences may assist prosecutors and police in exercising their discretion not to lay a charge or proceed with a prosecution.

Amendments to the self-defence provisions would repeal the current complex self-defence provisions spread over four sections of the Criminal Code (s.34-37) and create one new self-defence provision. It would permit a person who reasonably believes 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.

Amendments to the defence of property provisions would repeal the confusing defence of property language that is now spread over five sections of the Criminal Code (s.38-42). One new defence of property provision would be created, eliminating the many distinctions regarding acts a person can take in defence of different types of property. The new provision 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.

The Current Laws

Defence of Self and Defence of Others

Under sections 34 to 37 of the Criminal Code, distinct defences are provided for a person who uses 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.

Defence of Property

Under sections 38 to 42 of the Criminal Code, multiple defences for the "peaceable possessor" of property exist. Considerations of the type of property (either personal or real property), the possessory right of the possessor, and of the other person and proportionality between the threat to the property, and the amount of force used must be taken into account when the defence of property is raised.

Use of Deadly Force

The use of deadly force is only permitted in very exceptional circumstances — for example, where it is necessary to protect a person from death or grievous bodily harm. The courts have clearly stated that deadly force is never considered reasonable in defence of property alone. The legislative reforms currently being proposed do not make any change to the law relating to deadly force. Courts will therefore continue to make any necessary changes on a case-by-case basis, developing the common law if and where appropriate.

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Department of Justice Canada
November 2011