Backgrounder: Citizen's Power of Arrest and Self-Defence and Defence of Property
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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
Department of Justice Canada
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