By Mike Burgess
As I sit to write this article, our Senate in Ottawa is reviewing the contents of Bill C-26, The Citizen’s Arrest and Self-defence Act, passed by parliament in early May. There isn’t much doubt that this will be signed into law very shortly, but along with it has come a tirade of comments from the security industry on what they seem to think it means.
By Mike Burgess
The courts have stated again and again, that a citizen’s arrest and the use of force by non-police personnel should only be attempted when all other options prove ineffective. To paraphrase a recent court case: “…an arrest attempt may lead to a confrontation more serious than the initial offence itself, 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.”
“Further, what may be determined to be ‘reasonable force’ in a given situation, also must have regard not only to what force is necessary to accomplish the arrest, but also to whether a forcible arrest was in all the circumstances a reasonable course of action in the first place.”
This statement is paramount for private security guards to understand. The courts, the police, the provincial ministries and other oversight entities are tasked with reviewing the actions of security guards in a hearing, a trial or civil proceeding and will determine if this was the most prudent course of action to be taken in the first place.
They will examine the options available such as waiting for the police, and measure that against the risks of escalations, damage to property and/or injury to all involved taking into account all the impacting factors. The outcome, albeit authorized in law, could lead to criminal charges if deemed excessive and/or civil litigation if proven an unnecessary course of action at the time. This is what Bill C-26 and the new changes to section 494 (2) is all about: common sense!
Bill C-26 does NOT broaden the powers of arrest of security guards or loss prevention officers to make their powers similar to those of a peace officer under section 495 by permitting an arrest on reasonable grounds at some point later. The amendment does alter the time period within which a security guard can make an arrest. It lengthens it from “immediately” to “a reasonable time after.”
This is a dangerous development for risk managers and a severe tightening of policies and procedures is now necessary to avoid any unlawful detentions/arrests and the legal backlash along with it. So what is the definition of a “reasonable time later?” Common sense should tell you the answer.
The amendment does NOT alter or impact the definitions of either “fresh pursuit” or “finds committing” regardless of what some may think as they attempt to apply these changes to permit the use of CCTV cameras to “follow/pursue” or otherwise locate a criminal in order to apprehend them. These two definitions have established by the courts previously and are not even mentioned in the amendment.
The viewing of a crime, does not equate the “real time” viewing of a crime on a CCTV surveillance system with the eyewitness viewing of it at the scene by a security guard. Guards must witness criminal offences in person with their own eyes in order to make a legal citizen’s arrest. The only exception is in section 494 (1) (b) when they may arrest a person who is escaping from and freshly pursued by persons who have lawful authority to arrest that person. This gives rise to a whole other set of potential false arrest scenarios and only serves to underline my recommendations for mandatory re-testing of security guards in their powers of arrest and close supervision through policies and procedures by risk managers.
Not to beat a dead horse here, but CCTV cameras provide “articulable cause to attend” not “reasonable grounds to arrest” for civilian guards. Police can make arrests on reasonable grounds using CCTV alone, however security guards/citizens cannot. This has not changed even in light of the reference to CCTV cameras in the Chen case. Consider what the consequences would have been had David Chen had arrested the wrong person based on who he “thought” had stolen from him that day?
Parliament is rightly very concerned about vigilantism and the “perception” of expanded rights to make arrests after the fact. The courts have expressed concern previously with the risks of an escalation of violence, when ordinary citizens are given the right to arrest or use force in furtherance of their “private interests.” The courts must consider, not only if an arrest or use of force was “authorized in law,” or the use of force “reasonable” but also IF the arrest was a reasonable course of action in the first place.
In plain terms, an arrest may be authorized in law, but just because you can, it doesn’t mean you should! If you are in the security industry now and arrest is part of what you are tasked to do, the best advise I can give you is: don’t become case law! Further information on this topic can be found at www.SecurityTrainingSupport.com or by contacting the author at mike@BurgessAndAssoc.com
Mike Burgess, is the president of Security Training Support, a division of M.D. Burgess And Associates Inc. (www.burgessandassoc.com).