Bill C-60: An ‘arresting’ change to the Criminal Code

Chen, owner of a Toronto grocery store, and his employees were charged with assault and forcible confinement after they “arrested” Mr. Bennett, a well known, serial shoplifter.  Bennett had stolen from the store an hour before, and then returned for more.

At trial, the defence argued that a citizen’s arrest should not be limited to situations where a person is arrested at the moment he/she commits a crime. The Court agreed and ruled Chen and his employees were making a S.494 sanctioned arrest.

Per Khawly, Prov. Crt. J.: <2>
“What conclusion could a reasonable observer arrive at standing in Mr. Chen’s shoes?  …:
1.    Viewing his surveillance camera sometime after Mr. Bennett’s alleged theft, Mr. Chen can clearly see a black man on a bicycle with fairly distinctive clothing load up a bike with plants and depart.

2.    Within an hour and in the flesh this time Mr. Chen sees a man matching the same description on a similar bicycle arrive to the same area. …. To categorize this as a new incident — while likely technically correct — is putting the intention of Parliament in a straight jacket….

3.     Part of those new times is ubiquitous cameras, smartphones and other devices which capture our every action. All this should provide greater elasticity to the words ‘finds committing’ in S. 494. Those gadgets allow one to remotely see a theft in progress. If I accept the restrictive definition of ‘finds committing’ as urged by the prosecution, query whether one could make a citizen’s arrest when the thief is only seen on a video screen in a backroom. By necessity a delay ensues. Realistically by the time it registers on the store owner that it is a theft in progress and the owner then makes it to the location, the theft is already completed and the person may even be — by then — away from the store.

Would the Crown still argue that the owner cannot make a citizen’s arrest? If the response is that this is not the situation here, I firmly disagree.

4.     The one hour delay is a red herring — common sense informs here the words ‘finds committing’. This was a continuing theft pure and simple. ….”
Section 494(2) presently reads: “Any one who is (a) the owner or a person in lawful possession of property, or (b) a person authorized by the owner or by a person in lawful possession of property, may arrest without warrant a person whom he finds committing a criminal offence on or in relation to that property. <3>

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The proposed amendment to s. 494(2) reads:  “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.

The proposed amendment will permit property owners, tenants, property managers, security guards, loss prevention officers, etc. (the “Property Owner”) to arrest a person without a warrant if they find them committing a criminal offence on or in relation to that property either “immediately”, OR “reasonably” later but only if the person making the arrest believes on reasonable grounds that it is not feasible in the circumstances for a peace officer to make the arrest.
 
What is a reasonable time after the offence is committed?  What are reasonable grounds for believing that it is not feasible in the circumstances for a peace officer to make the arrest?  The amendment does not provide any answers.  How would you answer these questions?
 
The proposed amendment does not mean that the Property Owner can arrest on “reasonable grounds”.  That is, the proposed amendment does not broaden the Property Owners’ powers of arrest and make them similar to that of a peace officer under section 495.  Peace officers are permitted to arrest persons who have committed an indictable offence or who, on reasonable grounds, the peace officer believes has committed or is about to commit an indictable offence. <4>
 
  The peace officer’s reasonable grounds could be based on information provided by a Property Owner. However, the Property Owner cannot act on “reasonable grounds” to believe. …

The proposed amendment is restricted to criminal offences “on or in relation to property”.  It does not change section 494(1), which permits a citizen to make an arrest only if he or she finds a person actually committing an indictable offence; OR, if the citizen believes, on reasonable grounds, that the person has committed a criminal offence and is escaping from and is being freshly pursued by persons who have lawful authority to arrest the person.
 
The proposed amendment alters the time period within which the Property Owner can make an arrest.  It lengthens it from ‘immediately’ to ‘a reasonable time after.’
 

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In addition, the proposed amendment does not change the definition of “finds committing” in s. 494(2).  For example, it does not equate the “real time” viewing of a crime-in-progress on a surveillance monitor with the eyewitness viewing of the crime at, or near, the crime scene by the Property Owner.  This issue was touched upon by the learned trial judge in the third paragraph of the judgment quoted above, but was not reflected in the proposed amendment.

There are numerous reported Canadian cases in which peace officers have used viewings of video recordings of crimes-in-progress as reasonable grounds for believing a person has committed an indictable offence and have made arrests.
 
Should security guards and loss prevention officers be permitted to use the aforementioned “real time” viewings to satisfy the requirement of “finds committing”? Should there be a requirement that the crime-in-progress be recorded to support the reasonableness of the security guard’s belief that the person committed the criminal offence? What is your opinion?

The amendment of s. 494 affects all security professionals. This is an extremely important change. We welcome your feedback! A second column will include suggested changes to s. 494 and a review of other Criminal Code sections Bill C-60 proposes to amend.

Contact Elliott Goldstein at elgold@rogers.com

1. Lawyer and the author of Visual Evidence.  elgold@rogers.com
2. Former OPP officer, court recognized expert in the use of force and in the training of security guards, loss prevention officers, bouncers, Special Constables, Municipal Law Enforcement and Provincial Offences Officers.  Contact mike@BurgessAndAssoc.com or call toll free 1.866.295.2500.
3. Bill C-60 also amends sections 34 (Defence – Use or Threat of Force), and 35 (Defence – property).
4. R. v. Jie Chen, Qing Li and Wang Chen 2010 CarswellOnt 10187 [2010] O.J. No. 5741, 2010 ONCJ 641 (Ont. C.J. Oct 29, 2010).