OTTAWA, ONTARIO--(Marketwire - March 11, 2013) - Today, the Honourable Rob Nicholson, P.C., Q.C., M.P. for Niagara Falls, Minister of Justice and Attorney General of Canada, and the Honourable Jason Kenney, M.P. for Calgary Southeast and Minister of Citizenship, Immigration and Multiculturalism, announced that Bill C-26, the Citizen's Arrest and Self-defence Act, has come into force.
"The Harper Government is committed to keeping our streets and communities safe. Canadians want to know that they are able to protect themselves against criminal acts and that the justice system is behind them, not against them," said Minister Nicholson. "Those who have been the victim of a crime should not be re-victimized by the criminal justice system."
"Our Government is proud to stand up for honest, hard-working Canadians against thieves and criminals," said Minister Kenney. "The so-called Lucky Moose Bill does this by reinforcing the right of business owners, like David Chen, to protect their property. Our Government will continue to stand up for law-abiding Canadians."
Before today, the citizen's arrest laws were too restrictive and allowed a citizen's arrest to be made only if an individual was caught actively engaged in a criminal offence on or in relation to one's property.
The new legislation expands the existing power to make a citizen's arrest. An owner, a person in lawful possession of property, or a person authorized by them is now allowed to arrest a person within a reasonable amount of time after having found a person committing a criminal offence either:
- on their property (e.g. the offence occurs in their yard); or
- in relation to their property (e.g. their property is stolen from a public parking lot).
The new citizen's arrest authority only applies in circumstances when it is not feasible for a police officer to make the arrest. The police continue to be Canada's first and foremost criminal law enforcement body.
This legislation also reforms the "self-defence" and "defence of property" provisions in the Criminal Code, which the police, prosecutors and the courts have acknowledged to be confusing and overly complex. These provisions have been simplified to more easily determine whether individuals who claim to have defended themselves, others, or their property, should be convicted of a criminal offence.
This legislation is in keeping with the Government's Plan for Safe Streets and Communities, which is one of four priorities identified by the Prime Minister. This Plan focuses on tackling crime, victims' rights, and fair and efficient justice.
An online version of the Citizen's Arrest and Self-defence Act is available at www.parl.gc.ca.
(Version française disponible)
Backgrounder: Citizen's Power of Arrest and Self-Defence and Defence of Property
The Citizen's Arrest and Self Defence Act came into force on March 11, 2013. The Act made changes to the Criminal Code relating to the power of a private citizen to make an arrest after they find a person committing a criminal offence on or in relation to property.
Citizen's Arrest Related to Property Crimes
Before the Act came into force, a citizen's arrest could only be made when a person was found in the act of committing a criminal offence. Now, for crimes committed on or in relation to one's property, a citizen's arrest can be made within a reasonable period of time after a person is found committing a criminal offence. This power of arrest is only 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.
The law requires that when a citizen's arrest is made, the arrested individual must be delivered to a police officer without delay. If a person making a citizen's arrest does not call the police as soon as possible, the arrest might be ruled illegal, and there could be civil or criminal consequences for the person making the arrest.
Reasonable Use of Force
The 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.
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. Whenever possible, a person should report wrongdoing to the police instead of taking action on their own.
More information on making a citizen's arrest is available here: What You Need to Know about Making a Citizen's Arrest
The self-defence provision of the Criminal Code permits a person to take reasonable action to protect themselves or others without being guilty of an offence.
Under the new law, a person is not guilty of an offence provided that they have a reasonable belief that either they or another person is being threatened with force and that the actions taken are for the purpose of defending against that force. The actions, which can include the use of force, must also be considered reasonable under the circumstances.
In deciding whether the action is reasonable, the court takes into consideration the relevant circumstances of the situation. The law includes a non-exhaustive list of factors that help courts to determine whether the accused person's actions were reasonable in the circumstances. These factors are not the only ones that courts consider when determining whether actions taken were reasonable, but are ones that have been previously well-established as being relevant to a self-defence claim.
Some examples of the factors listed in the law include the nature of the threat, how the person responded and whether it was proportionate to the threat or attack, how imminent the threat was and whether there were other ways in which the person might have been able to respond, whether there was a weapon involved, the size, age, gender and physical capabilities of the people involved, and the relationship between the people involved, including if there were previous threats of force.
In the case of self-defence claims against police actions such as an arrest, self-defence only applies if the person claiming it had reasonable grounds to believe that the law enforcement officer was acting unlawfully.
DEFENCE OF PROPERTY
The new defence-of-property provision permits a person in peaceable possession of property, or a person assisting someone they believe to be in peaceable possession of 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 concept of "peaceable possession" has been interpreted by the courts to mean possession that is not likely to lead to a breach of the peace. It limits the defence to circumstances where it is appropriate. For instance, it prevents someone not in peaceable possession, such as a thief in possession of stolen property, from using the defence if they resist efforts of others to retake property. It also prevents the defence from being used by a property owner who commits an offence in order to recover or retake property that is not in their possession. For instance, a person whose car was towed cannot use the defence against a charge that they broke into the lot to retrieve their car. Rather, a person who is not actually in possession of property they have a claim to must resort to the civil law, or seek assistance from other authorities such as the police, to resolve a conflict over their entitlement to the property. A person must not resort to the commission of a crime in such non-urgent situations.
As with self-defence, a claim of defence of property against police action, such as the execution of a search warrant and the seizure of evidence from a person's house, is only available where the property possessor believes that the police are acting unlawfully.
Use of Deadly Force
The use of deadly force is only reasonable 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 not considered reasonable in defence of property alone.
A technical guide on the new laws of self-defence and defence of property is available at: Technical Guide to Self Defence and Defence of Property Reforms
What You Need to Know About Making a Citizen's Arrest
Whenever possible, you should report wrongdoing to the police instead of taking action on your own. Police officers are equipped with the proper intervention tools and trained to deal with incidents which may escalate to become violent.
Making a citizen's arrest without carefully considering the risk factors may have serious unintended consequences for you and others involved. In most cases, an arrest consists of either actually seizing or touching a person's body in an effort to detain them.
Before deciding whether to make a citizen's arrest, you should be aware of the Citizen's Arrest Laws and consider the following:
- Is it feasible for a peace officer to intervene? If so, report the crime to the police instead of taking action on your own.
- Your personal safety and that of others could be compromised by attempting an arrest. Relevant considerations would include whether the suspect is alone and whether they possess a weapon.
- Will you be able to turn over the suspect to the police without delay once an arrest is made?
- Do you have a reasonable belief regarding the suspect's criminal conduct?
Making a Citizen's Arrest
If you do decide to make a citizen's arrest, you should:
- Tell the suspect plainly that you are making a citizen's arrest and that you are holding him or her until police arrive.
- Call the police.
- Ask explicitly for his or her cooperation until police arrive.
- Avoid using force, if at all possible, and use it to the minimum possible otherwise.
- Do not question or search the suspect or his or her possessions. Your purpose is only to temporarily detain him or her until police arrive.
- When police arrive, state the plain facts of what happened.
Citizen's Arrest Laws
In most cases, you must find a person either in the act of committing a crime, or escaping from and freshly pursued by persons who have lawful authority to arrest that person, in order to lawfully make a citizen's arrest. In particular, if you are arresting a person for an indictable offence, which is the most serious type of offence and includes violent offences, you can only make the arrest at the time you witness the person committing the offence. It is against the law to arrest a person after any lapse in time for having committed an indictable offence, unless it is relation to your property.
In special circumstances of any type of criminal offence that is committed on or in relation to your property, you may either:
- arrest a person you find in the act of committing a crime; or
- arrest a person within a reasonable period of time after having found that person committing a crime.
To be eligible to make a citizen's arrest for a crime on or in relation to property, you must be one of the following:
- the owner of the property;
- in lawful possession of the property; or
- have been authorized by the owner or the person in lawful possession of the property.
The law allows you to use as much force as is necessary for the purpose of making a citizen's arrest, as long as you are acting on reasonable grounds. However, any force you use must be tailored to the circumstances, and you are criminally responsible for any excess force you use. In addition to the potential for a criminal prosecution, you may also face a civil lawsuit in relation to your conduct and any injury you cause.
The law requires that when making a citizen's arrest, the arrested individual must be delivered to a police officer without delay. If you make a citizen's arrest and do not call the police as soon as possible, the arrest might be ruled illegal, and you could face civil or criminal consequences.
Correctly identifying a suspect
In the special circumstances of making an arrest "within a reasonable time after" observing an offence (as opposed to while the offence is in progress), you are strongly urged to exercise additional care in confirming the identity of the suspect.
It is always extremely important to correctly identify a suspect and their criminal involvement. If you make a citizen's arrest at the very time a person is found committing a crime, the correct identification of the suspect will not likely be called into question.
However, if you make an arrest "within a reasonable time after" observing the offence, the accuracy of the identification of the suspect may be called into question.
You need to be conscious of the fact that situational factors such as the presence of a weapon, the number of individuals involved, environmental factors and heightened stress levels can negatively affect your recollection of a past incident and your ability to correctly identify a person you have previously seen committing an offence. Even if you genuinely believe that you have correctly identified the suspect after the crime was observed, the risk of mistaken identity is real, and must not be minimized.
If the person you attempt to arrest is the wrong person, the situation is potentially very dangerous. The person being arrested will not understand why they are being detained and may not submit to the arrest. In these circumstances, there is a real risk that if you arrest the wrong person, you could provoke a violent confrontation, and risk injury or death.
A citizen's arrest is a very serious and potentially dangerous undertaking. Unlike a police officer, private citizens are neither tasked with the duty to preserve and maintain public peace, nor properly trained to apprehend suspected criminals. Exercise extreme caution when attempting to make a citizen's arrest.