The Conservative government is poised to enact the first substantive expansion of citizen’s arrest laws in Canada since 1955. The catalyst for the Bill C-26 amendment to the citizen’s arrest section of the Criminal Code of Canada was the 2010 case of Toronto grocer David Chen who faced criminal assault charges after performing a citizen’s arrest of a habitual thief he had seen stealing from his store earlier in the day.
At first blush, this legal development would hardly seem to be mainstream news from a labour and employment law perspective. A closer look, however, reveals that the invocation of “citizen’s arrest” laws occurs far more frequently than many people think. This column will pinpoint the changes that are about to come into force and set out their relevance and broader implications in the context of the Canadian workplace.
The relevance of citizen’s arrest in the workplace context
Canadian case law is replete with examples of citizen’s arrests performed by employees in a wide variety of workplaces, including bars and nightclubs, retail stores, racetracks, supermarkets, educational institutions, movie theatres, shopping malls, airports and apartment/condo buildings to name a few. There are two main types of citizen’s arrest. In most cases, an employee performs a citizen’s arrest of a member of the public (i.e., a non-employee) found to be committing a criminal offence. In rare cases, an employee may arrest a fellow employee following a crime, such as a workplace theft or assault.
In performing citizen’s arrests, employees unavoidably place themselves in harm’s way. Some employees, such as security guards and retail loss prevention personnel, are trained to perform arrests. Some organizations also have an arrest and/or use of force policy. Even with this type of training and policy direction, however, the unpredictable nature of citizen’s arrests can involve quite considerable risk of injury, not to mention legal liability.
Many non-security employees also perform citizen’s arrests. Such arrests are most often conducted out of necessity and in the absence of training or procedural guidelines. Examples here include retail store clerks, building maintenance/custodians, schoolteachers and sometimes the manager of a business or department who views it as his or her responsibility to detain an individual following a crime.
To be sure, citizen’s arrests are not everyday occurrences within most workplaces. However, several socio-political factors are coming together to increase their prevalence in Canada, including:
- The rise in private security staff in parallel with the stagnation of front-line police personnel and services (i.e., there are 140,000 licensed security personnel in Canada, compared to 69,438 police officers, a ratio of 2:1).
- The ongoing economic downturn, which has led to decreases in private and public sector funding for “professional” security, places more direct responsibility for crime prevention and response into the hands of front-line employees
Citizen’s arrest law, as it stands
Under the current citizen’s arrest law, Section 494(2) of the Criminal Code, property owners and their agents (e.g., employees) have a right to arrest someone they find committing a criminal offence on the owners’ property. The current citizen’s arrest power is narrow in the sense that employees are only authorized to perform an arrest if they find someone in the physical act of committing a criminal offence. In essence, this means that both the offence and the subsequent citizen’s arrest must form part of a single continuing transaction.
As noted by Justice Wilkins in Pope v. Route 66 Clothing Inc.: “The circumstances under which a person who is not a peace officer is entitled to make an arrest in the protection of their property are, for obvious reasons, very limited.”
The risks inherent in making a citizen’s arrest
There are a number of risks inherent in exercising the citizen’s arrest power. Criminals, including petty criminals, can be desperate and violent, and the risk of harm to the person making an arrest is ever-present. Arrests by employees can be made for a wide range of criminal offences, many of which are minor in nature. Examples of minor, everyday offences include:
- Disturbing the customary use of property by shouting or swearing (s. 175, Criminal Code)
- Obstructing an entranceway to a building or site (s. 430)
- Theft of an inexpensive item from a retail store (s. 322)
- Drawing graffiti on a wall (s. 430)
The dangers associated with the performance of citizen’s arrests are aptly summed up in a 1987 Ontario Ministry of the Attorney General’s paper, “This land is whose land?”:
An arrest is a grave imposition on another person’s liberty and should only be attempted if other options prove ineffective. Further, an arrest attempt may lead to a confrontation more serious than the initial offence…and should be exercised with caution. Excessive force or improper use of the arrest power, may leave the occupier, or a designated agent, open to both criminal charges and civil liability.
The latter point from the above quotation should not be under-emphasized. Under the criminal law, an employee who makes a false arrest is liable to be charged with assault and/or unlawful confinement. Significant tort liability also attaches to false arrests. In the case of Chopra v. T. Eaton Co. Ltd., damages of $38,000 plus legal costs were awarded to a plaintiff for a false arrest. In reality, many false arrest cases are settled out of court for much more substantial financial settlements.
Expanded citizen’s arrest powers under the Bill C-26 amendment
The Bill C-26 amendment (The Citizen’s Arrest and Self-defence Act) modifies section 494(2) of the Criminal Code to allow a citizen’s arrest to be performed not only at the time a criminal offence is committed but also “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” (emphasis added). This seemingly minor addition to the longstanding law of citizen’s arrest in Canada raises some very important questions.
1. Defining a “reasonable time”
In definitional terms, the concept of “reasonable time” under Canadian law is novel, elusive and contextual. What is a reasonable delay from the time an offence is committed to the time a citizen’s arrest is made? One hour? How about four hours? Maybe the next day? Should it depend on how serious the crime is? Should the importance of the subject of the arrest to the public interest come into play? What policy limits should be placed on employees in invoking this extended arrest power?
2. The feasibility of police attendance
Then there is the thorny question under the amendment of whether it is feasible to wait for the police to make the arrest. What criteria should determine the feasibility of police attendance? Proximity to a police station? Whether the person contemplating a citizen’s arrest has a phone with which to contact police to request immediate assistance? Whether the police can guarantee a quick response time? How should employers approach this from a procedural standpoint?
3. The use of video surveillance
As previously noted, the catalyst for Bill C-26 was the case of shopkeeper David Chen. Mr. Chen has appeared in the media, alongside prominent political figures, as each significant step has been reached in the passage of the law. The government, in announcing and promoting Bill C-26, has identified shopkeepers such as Chen as the primary beneficiaries of the new law.
One of the key facts of the Chen case was that the original offence for which Chen later made a citizen’s arrest was observed via video surveillance camera. Since the new law has been promoted as benefitting retail businesses, it seems reasonable to conclude that in its expanded conception of citizen’s arrest, the legislature intends that an arrest made “within a reasonable time” of an offence originally viewed on video surveillance is acceptable.
In support of this proposition, consider the following quote from Justice Khawly of the Ontario Court of Justice in the Chen case, R v. Chen et. al., 2010:
Parliamentarians expect judges who are the custodians of society’s rules of conduct to evolve with the times and to interpret the sections of the Criminal Code through that prism.… Part of those new times is ubiquitous cameras…which capture our every action.… [T]his should provide greater elasticity to the words ‘finds committing’ in S. 494. (Emphasis added.)
The extent to which video surveillance can be used in support of a citizen’s arrest under the Bill C-26 amendment remains unclear. If an arrest is made on the power of video evidence, must the same person who viewed the video perform the arrest? If someone reviewing historical video evidence (i.e., from the previous day) witnesses a criminal offence, can the offender be arrested the next day? Given the poor quality of some video systems, how can the employer ensure that the same person seen committing the offence on video is the person arrested later (i.e., within a reasonable time)?
The implications of broader citizen’s arrest powers under Bill C-26
It is clear that the primary beneficiaries of the expanded citizen’s arrest law will not be shopkeepers or small business owners, but rather the Canadian private security industry. A recent headline from the Vancouver Sun unflatteringly states, Citizen’s arrest bill gives more power to rent-a-cops, police warn.
In raising concerns about the personal safety of those performing arrests under the broader mandate of Bill C-26, the Canadian Police Association (CPA) recently stated that those performing citizen’s arrests, “often lack the necessary range of equipment or adequate training to safely and lawfully make arrests in a manner proportionate to the circumstances.”
In a similar vein to the CPA, the Canadian Bar Association (CBA) pulled no punches in relaying its concerns to legislators in its written submission on Bill C-26 tabled in the House of Commons. According to the CBA, the proposed changes to the citizen’s arrest law will:
- create uncertainty in the law by leaving private citizens to judge the meaning of “arrest within a reasonable time” and the meaning of “believe on reasonable grounds that it is not feasible … for a peace officer to make the arrest”;
- encourage citizens, who are untrained in arrest procedures, to risk personal harm, as well as liability for wrongful arrests. Arrestees are more likely to resist citizen’s arrest than arrest by police, and ordinary citizens are less likely to have knowledge of physical controls or tactical communications to deal with resistance; and
- encourage unjustified arrests by private security personnel who are not subject to public oversight.
Law professor Vanessa MacDonnell, in her viva voce remarks during the third reading of Bill C-26 in the House of Commons, also raised concerns about the risks to citizens under the expanded law:
…there’s a higher possibility of a false arrest; the individual performing the arrest might have the wrong person; and, the person being arrested may have no idea why he or she is being arrested and might resist arrest, either lawfully or otherwise.… In this respect, the expansion of the powers of citizen’s arrest being proposed by Bill C-26 is concerning.
Conclusions and next steps
Citizen’s arrests related to the workplace are more prevalent than many employers realize. Such arrests are inherently risky and are often performed in the absence of adequate guidance and instruction from the employer. The broader powers within Bill C-26 increase the scope of citizen’s arrest and in so doing, place greater risks on employees and employers.
The Bill C-26 amendment passed third reading in the Senate on June 12, 2012, and will become the law in Canada at a soon-to-be-announced date. Organizations that employ private security personnel or other employees in roles where arrests may be performed would be wise to perform a comprehensive risk assessment and create or adapt arrest/use of force policies and associated training. These steps are all the more important given the increasing scope of workplace violence law in Canada from both a statutory/regulatory perspective as well as under tort law.
David Hyde, M.Sc., CPC
David Hyde and Associates
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