On June 28, 2012 the federal government gave royal assent to a new law that expands the power for ordinary Canadians to make a citizen’s arrest, and that streamlines the provisions regarding defending oneself and one’s property.
So what exactly are these changes, and what do they mean for the average Canadian?
The new law, Bill C-26 (also known as the “Lucky Moose Bill” – more on that later) amends s.494 of the Criminal Code of Canada. Under the old law, ordinary citizens could only arrest someone if they found a person actually committing a criminal offence. This requirement for the offender to be caught red-handed is what had been the stumbling block in a widely-publicized 2009 case out of Toronto. In that case, David Chen, the owner of the Lucky Moose Food Mart (there’s the link!) spotted a man coming towards his store and recognized him as having previously stolen some plants. Chen and two employees chased the accused, caught up to him a short distance away, grabbed him, tied him up, and threw him into their delivery van so that they could hold him until the police came. Instead of being hailed as heroes, however, Mr. Chen and his employees found themselves arrested and charged with assault and forcible confinement (they were ultimately acquitted, although only after first refusing a plea bargain that sought to have them admit to lesser charges).
Under the new law, Mr. Chen would likely fare better. The new law allows citizen’s arrests not only while the offence is being committed, but within a “reasonable time” after the offence if the citizen making the arrest believes “on reasonable grounds” that it is “not feasible” for police to make the arrest. In short: there will now be more latitude in the manner and timing of making citizen’s arrests, as long as the actions in question are seen by the courts as being “reasonable” under the circumstances. However, law enforcement must still be contacted as soon as possible afterwards.
The new legislation also pulls together a number of Criminal Code provisions that dealt with the defence of personal property. More specifically, the new law allows those who are in “peaceful possession” of property to take reasonable steps to protect that property from persons entering the property when they are not allowed to do so, or from stealing or damaging that property. Again, the actions taken must have been reasonable in the circumstances.
The next question that arises is, naturally, what does “reasonable” in the circumstance mean? Although there is no definite answer to that question, the new law does set out a list of factors which the court may take into account in determining what is reasonable. These factors include: the nature of the force or threat; whether weapons were involved, whether the threat was imminent; the role of all parties involved in the incident; the prior relationship of all the parties if any; the age, size and gender of the parties; and the proportionality of the response.
The result: this is not a carte blanche for vigilantism, but, hopefully, it will help make us all safer and result in fewer victims finding themselves facing criminal charges.
Remember, though: keep it reasonable!
For information regarding the reasoning behind the new law, see the legislative summary.