Citizen's Arrest -- Criminal Law

An Act called the “Citizen’s Arrest and Self-defence Act” has received Royal Assent and will come into force on proclamation. 

In 2009, a shop owner chased down a repeat shoplifter, tied him up and held him in the back of a van until the police were able to attend.  The shopowner was charged with forcible confinement and assault and while he was found not guilty, the public outcry prompted political action.

Citizen’s Arrest

Under the current citizen’s arrest provision, there are three circumstances when a citizen may make an arrest:

 1. the citizen finds someone committing an indictable offence;

 2. the citizen believes that someone has committed a criminal offence and is escaping from and freshly pursued by a police officer; or

3. the citizen is a property owner or in lawful possession of property or someone authorized by the owner or person in lawful possession and finds someone committing a criminal offence in relation to that property.

The new provision only affects the third circumstance by adding that a citizen may arrest someone within a reasonable time after the offence is committed if the citizen reasonably believe that it is not feasible for a police officer to make the arrest.  As a result, a citizen may arrest someone even if they do not “catch them in the act”.  

This new provision addresses the issue of a shopowner who makes an arrest after pursuing a shoplifter. However, arresting someone who is not caught in the act raises a new issue because the citizen may not correctly identify the suspect and inadvertently arrest an innocent person. 

 Self-defence

Self-defence can be divided into two main areas: defence of self or others and defence of property.

The Criminal Code currently has nine provisions that deal with self defence and they are notoriously complex and difficult to understand.  The Act will repeal all of the previous sections and replace them with one provision for each of the two areas of self-defence. 

In regard to defence of self or others, the new provision states that a person is not guilty of an offence if:

1. that person reasonably believes that force or a threat of force is being used against him or another person;

2. the act is done for the purpose of defending himself or another person from the force or threat of force; and

3. the act is reasonable in the circumstances.

The new provision also sets out factors that a court must consider in determining if a person has a defence.

In regard to defence of property, a person who commits an act in self-defence must be someone who is in peacable possession of property or someone acting under the authority of or lawfully assisting a person who is in peacable possession of property.  The person against whom the act is committed must be about to enter, or entering the property, about to take or has just taken property, or is about to damage or destroy property.

In all cases, the act must have been committed for the purpose of preventing someone from entering the property, taking property or causing damage to property, or to remove that person from the property.

The current legislation provides that the person who commits an act in self-defence must use “no more force than necessary” in all circumstances except in the case of protecting a dwelling house from a break and enter when a homeowner may use “as much force as necessary”.  This language will be changed to say that the act must be “reasonable in the circumstances”.

The change in language is unlikely to affect the position of the courts in Canada that deadly force is not reasonable in defence of property alone.