Canada: Citizen’s Arrest and Self-defence Act or Citizen’s Arrest and Self-defence Act – Comes Into Force Today

Update:

New Citizen’s Arrest Powers Come Into Effect in Canada Today

 Chris Young / THE CANADIAN PRESS Shopkeeper David Chen (centre) stands with Prime Minister Stephen Harper and Ontario's Lieutenant Governor David Onley as he received a Diamond Jubilee Medal earlier this year. Chen, a Toronto grocer charged in 2009 but later acquitted for chasing down and detaining a shoplifter, prompted criminal code changes.
Shopkeeper David Chen (centre) stands with Prime Minister Stephen Harper and Ontario’s Lieutenant Governor David Onley as he received a Diamond Jubilee Medal earlier this year. Chen, a Toronto grocer charged in 2009 but later acquitted for chasing down and detaining a shoplifter, prompted criminal code changes. Photo by Chris Young/The Canadian Press

The Citizen’s Arrest and Self-defence Act no longer requires a person to catch a suspect red-handed, but allows for the apprehension within a reasonable amount of time after a crime.

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New powers of citizen’s arrest came into force Monday that give people more leeway in nabbing criminals.

The Citizen’s Arrest and Self-defence Act no longer requires a person to catch a suspect red-handed, but allows for the apprehension within a reasonable amount of time after a crime.

David Chen, owner of the Lucky Moose convenience store on Dundas St. W in Toronto;s Chinatown.  NDP Olivia Chow moved a motion to protect storeowners from thieves. The Bill was commonly referred to as the Lucky Moose law.
David Chen, owner of the Lucky Moose convenience store on Dundas St. W in Toronto;s Chinatown. NDP Olivia Chow moved a motion to protect storeowners from thieves. The Bill was commonly referred to as the Lucky Moose Bill.
It was inspired by the case of David Chen, owner of the Lucky Moose convenience store in Toronto, who was charged after making a citizen’s arrest of a thief who stole repeatedly from his shop. Chen was later acquitted. Chen and other store owners complained that calling the police was a useless response, as they would arrive very late after the crime was committed or not at all, leaving storeowners to fend for themselves.  When Chen and others finally apprehended a thief, police charged Chen, rather than the thief.
NDP MP Olivia Chow, who forwarded the first iteration of the Lucky Moose Bill, said she was “very pleased to see store owners who want to protect their own store will not be facing charges. Under this new law, the 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 allows people to make a citizens’ arrest of someone who has committed a crime on their property or in relation to their personal possessions when it’s not feasible for a police officer to make an arrest.

Justice Minister Rob Nicholson says Canadians want to know they are able to protect themselves from crime and not be re-victimized by the criminal justice system.

The case of David Chen, a Toronto grocery store (the Lucky Moose in Chinatown) owner who chased down and detained a shoplifter, spurred the Criminal Code changes after he was charged with forcible confinement and assault, though he was later acquitted.

The law still requires people to call police as soon as possible and not use excessive force.

Olivia Chow, who had drafted and tabled the first version of the Lucky Moose Bill.
Olivia Chow, who had drafted and tabled the first version of the Lucky Moose Bill.

Citizen’s Arrest and Self-defence Act

S.C. 2012, c. 9

Assented to 2012-06-28

An Act to amend the Criminal Code (citizen’s arrest and the defences of property and persons)

This enactment amends the Criminal Code to enable a person who owns or has lawful possession of property, or persons authorized by them, to arrest within a reasonable time a person whom they find committing a criminal offence on or in relation to that property. It also amends the Criminal Code to simplify the provisions relating to the defences of property and persons.

SHORT  TITLE

Short title

 This Act may be cited as the Citizen’s Arrest and Self-defence Act.

R.S., c. C-46  CRIMINAL CODE

Marginal note: 1992, c. 1, s. 60 (Sch. I, s. 20) (F)

 Sections 34 to 42 of the Criminal Code are replaced by the following:

Marginal note:  Defence — use or threat of force
  • 34. (1) A person is not guilty of an offence if

    • (a) they believe on reasonable grounds that force is being used against them or another person or that a threat of force is being made against them or another person;

    • (b) the act that constitutes the offence is committed for the purpose of defending or protecting themselves or the other person from that use or threat of force; and

    • (c) the act committed is reasonable in the circumstances.

  • Marginal note: Factors

    (2) In determining whether the act committed is reasonable in the circumstances, the court shall consider the relevant circumstances of the person, the other parties and the act, including, but not limited to, the following factors:

    • (a) the nature of the force or threat;

    • (b) the extent to which the use of force was imminent and whether there were other means available to respond to the potential use of force;

    • (c) the person’s role in the incident;

    • (d) whether any party to the incident used or threatened to use a weapon;

    • (e) the size, age, gender and physical capabilities of the parties to the incident;

    • (f) the nature, duration and history of any relationship between the parties to the incident, including any prior use or threat of force and the nature of that force or threat;

    • (f.1) any history of interaction or communication between the parties to the incident;

    • (g) the nature and proportionality of the person’s response to the use or threat of force; and

    • (h) whether the act committed was in response to a use or threat of force that the person knew was lawful.

  • Marginal note:  No defence

    (3) Subsection (1) does not apply if the force is used or threatened by another person for the purpose of doing something that they are required or authorized by law to do in the administration or enforcement of the law, unless the person who commits the act that constitutes the offence believes on reasonable grounds that the other person is acting unlawfully.

Defence of Property

Marginal note: Defence  — property
  • 35. (1) A person is not guilty of an offence if

    • (a) they either believe on reasonable grounds that they are in peaceable possession of property or are acting under the authority of, or lawfully assisting, a person whom they believe on reasonable grounds is in peaceable possession of property;

    • (b) they believe on reasonable grounds that another person

      • (i) is about to enter, is entering or has entered the property without being entitled by law to do so,

      • (ii) is about to take the property, is doing so or has just done so, or

      • (iii) is about to damage or destroy the property, or make it inoperative, or is doing so;

    • (c) the act that constitutes the offence is committed for the purpose of

      • (i) preventing the other person from entering the property, or removing that person from the property, or

      • (ii) preventing the other person from taking, damaging or destroying the property or from making it inoperative, or retaking the property from that person; and

    • (d) the act committed is reasonable in the circumstances.

  • Marginal note:  No defence

    (2) Subsection (1) does not apply if the person who believes on reasonable grounds that they are, or who is believed on reasonable grounds to be, in peaceable possession of the property does not have a claim of right to it and the other person is entitled to its possession by law.

  • Marginal note:  No defence

    (3) Subsection (1) does not apply if the other person is doing something that they are required or authorized by law to do in the administration or enforcement of the law, unless the person who commits the act that constitutes the offence believes on reasonable grounds that the other person is acting unlawfully.

  •  (1) Subsection 494(2) of the Act is replaced by the following:

    • Marginal note:  Arrest by owner, etc., of property

      (2) The owner or a person in lawful possession of property, or a person authorized by the owner or by a person in lawful possession of property, may arrest a person without a warrant if they find them committing a criminal offence on or in relation to that property and

      • (a) they make the arrest at that time; or

      • (b) they make the 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.

  • (2) Section 494 of the Act is amended by adding the following after subsection (3):

    • Marginal note:  For greater certainty

      (4) For greater certainty, a person who is authorized to make an arrest under this section is a person who is authorized by law to do so for the purposes of section 25.

COMING INTO FORCE

 Order in council   The provisions of this Act come into force on a day or days to be fixed by order of the Governor in Council. This Act came into force on March 11, 2013.

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

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.

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. 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

SELF-DEFENCE

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

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