Citizen's Arrest Powers Limited

Citizen’s Arrest Powers Limited

 

Late last week the British Columbia Court of Appeal released its decision in R. v. Abel & Corbett 2008 BCCA 54.

 

The case dealt with the concept of citizen’s arrest and made it clear that such powers were to be exercised only in the narrowest of circumstances.  As some readers may remember, in a popular episode of the "The Andy Griffith Show", Gomer Pyle discovered the power of citizen's arrest. He spent the rest of the episode placing local citizens under arrest for the most minor offenses imaginable. While Gomer Pyle's intentions may have been honorable, the concept of citizen's arrest is not to circumvent legitimate law enforcement or arbitrarily detain people without proof of a crime. Today, citizen's arrest exists as more of an emergency or stop-gap power granted to ordinary citizens at the behest of law enforcement officers.  Citizen's arrest means that a private citizen has the right to detain suspected criminals for serious crimes until proper law enforcement personnel can assume custody.

 

Section 494 of the Criminal Code provides:

 

(1)        Any one may arrest without warrant

 

(a)        a person whom he finds committing an indictable offence; or

 

(b)        a person who, on reasonable grounds, he believes

 

(i)         has committed a criminal offence, and

 

(ii)        is escaping from and freshly pursued by persons who have lawful authority to arrest that person.

 

(2)        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)        Any one other than a peace officer who arrests a person without warrant shall forthwith deliver the person to a peace officer.

 

 

A key issue in a lawful citizen’s arrest is an urgent need to detain someone who is either committing a crime or escaping police. 

 

In Abel & Corbett the accused were convicted of offences arising out of their apprehension of a Mr. Holl. Abel believed Holl had recently stolen his rifle; however, he had no information as to where the rifle was located. Abel and Corbett found Holl at a townhouse. Holl was subdued following an altercation. He then took the accused to where the rifle was hidden some distance away. At trial, the accused submitted that the jury should be instructed to consider whether their actions were justified as a citizen’s arrest under s. 494(1)(a) of the Criminal Code.

 

The trial court declined to make the instruction and the Court of Appeal agreed.   The Court held that an examination of the common law roots and historical usage of the expression “finds committing” reveals that it connotes a situation in which the arresting party comes upon someone in the very act of committing an offence. This interpretation is also supported by the French version of the Code and other federal statutes providing for arrest on the basis of “finds committing.”

 

Part of the decision is set out below:

 

[43]            Canada’s first Criminal Code was enacted in 1892:  S.C. 1892, c. 29.  It provided for a citizen’s arrest in s. 552:

 

Any one found committing any of the offences mentioned in the following sections, may be arrested without warrant by any one, that is to say … .

 

What followed was a long list of crimes, including a number of possessory offences such as retaining possession of property obtained by crime, possession of housebreaking instruments, possession of forged bank notes, and possession of clippings of current coins.

 

[44]            Henri Elzéar Taschereau, one of the judges of the Supreme Court of Canada, in his commentary, The Criminal Code of the Dominion of Canada, as amended in 1893, 3d ed. (Toronto:  Carswell, 1893), had this to say about “finds committing” (at 621):

 

It has been held that where a statute gives a power to arrest a person found committing an offence, he must be taken in the act, or in such continuous pursuit that from the finding until the apprehension, the circumstances constitute one transaction:  R. v. Howarth, 1 Moo. 207; Roberts v. Orchard, 2 H. & C. 769; and therefore, if he was found in the next field with property in his possession suspected to be stolen out of the adjoining one, it is not sufficient:  R. v. Curran, 3 C. & P. 397; but if seen committing the offence it is enough, if the apprehension is on quick pursuit:  Hanway v. Boultbee, 4 C. & P. 350. The person must be immediately apprehended; therefore, probably the next day would not be soon enough, though the lapse of time necessary to send for assistance would be allowable:  Morris v. Wise, 2 F. & F. 51; but an interval of three hours between the commission of the offence and the discovery and commencement of pursuit is too long to justify an arrest without warrant under these statutes:  Downing v. Capel, 36 L.J.M.C. 97.

 

See also:  Crankshaw’s Criminal Code of Canada, 2nd ed. (Toronto:  Carswell, 1902) at 35; Tremeear’s Annotated Criminal Code of Canada, 2nd ed. (Toronto:  Carswell, 1908) at 33.

 

[45]            From the beginning, Canadian courts have interpreted the words “finds committing” as pertaining to situations where the person being arrested is discovered in the very act of committing an offence.  R. v. Hills (1924), 44 C.C.C. 329 (Alta. S.C. (A.D.)), is an example.  In this case, the power to arrest on the basis of “finds committing” was contained in s. 85 of the Liquor Act, R.S.A. 1922, c. 266.  Acknowledging that this expression had been taken from the arrest provisions of the Criminal Code, Mr. Justice Clarke, after citing a number of English authorities, stated (at 334), that, “a peace officer finds him committing the offence by seeing the act committed.”

 

[46]            This reasoning was applied in R. v. Selock (1931), 56 C.C.C. 243 (Alta. S.C. (A.D.)), a case dealing with what was then s. 648(1) of the Criminal Code, which authorized the arrest without warrant of anyone whom a peace officer “finds committing any criminal offence.”  Adopting Clarke J.A.’s interpretation of “finds committing”, Chief Justice Harvey stated (at 248):  “I think that is the correct view, for it appears to me that the essential, and the only essential fact, is that the offence should be committed in the officer’s presence … .”

 

[47]            Section 648(1) of the Criminal Code was again considered in Whitworth v. Dunlop (1934), 62 C.C.C. 41 (B.C.C.A.), a civil action for damages for false arrest and imprisonment.  Police officers arrested Whitworth without a warrant on a charge of keeping a common bawdy house.  Whitworth was acquitted of the charge and then successfully sued the arresting officers.  In allowing an appeal from the judgment, this Court held that Whitworth had been lawfully arrested.  Mr. Justice Martin, as he then was, held that s. 648(1) was engaged because “the offence was in fact ‘in course of perpetration by the offender before the eyes of the constable’ and pursued to completion”:  at 43.  In concurring reasons, Mr. Justice Macdonald said that “under [s. 648] the accused must be found actually committing the offence”:  at 46.

 

…

 

[50]            Section 435(b) [now s. 495(1)(b)] was considered by Mr. Justice Laskin, as he then was, in his concurring reasons in R. v. Dean, [1966] 3 C.C.C. 228 (Ont. C.A.).  Although preferring the view expressed by Clarke J.A. in Hills that “finds committing” requires that the arresting officer actually see the crime being committed, Laskin J.A. acknowledged that it may not be necessary for the officer to “have seen the entire transaction or the commission of all the acts that go to make up the offence.”  What is essential is that the arresting officer “see at least the essential features of the offence”:  at 235, 236.

 

[51]            Most importantly, in my view, the Supreme Court of Canada has interpreted the power to arrest on the basis of “finds committing” as one which is triggered by the detection of a crime in progress.  In R. v. Biron, [1976] 2 S.C.R. 56, Mr. Justice Martland, in dealing with what was then s. 450(1)(b) [now s. 495(1)(b)] of the Criminal Code, stated (at 72):

 

Paragraph (b) applies in relation to any criminal offence and it deals with the situation in which the peace officer himself finds an offence being committed.  His power to arrest is based upon his own observation.  Because it is based on his own discovery of an offence actually being committed there is no reason to refer to a belief based upon reasonable and probable grounds.

 

And (at 75):

 

In my opinion the wording used in para. (b), which is oversimplified, means that the power to arrest without a warrant is given where the peace officer himself finds a situation in which a person is apparently committing an offence.

 

 

[52]            The Supreme Court of Canada again discussed the power of a police officer to arrest on the basis of “finds committing” in R. v. Roberge, [1983] 1 S.C.R. 312.  Mr. Justice Lamer, as he then was, held that the question of whether a person was found apparently committing a criminal offence is to be determined having regard to what “must be ‘apparent’ to a reasonable person placed in the circumstances of the arresting officer at the time”:  at 324.  In other words, before invoking this power the arresting officer must have reasonable grounds to believe that the person to be arrested is apparently in the process of committing a crime in his or her presence.  In the context of a citizen’s arrest under s. 494(1)(a) of the Code, this means that before a citizen can effect an arrest, he or she must have reasonable grounds to believe that the person to be arrested is apparently in the process of committing an indictable offence in his or her presence.

 

[53]            This crime in process (or in progress) requirement is reflected in this Court’s judgment in R. v. Klimchuk (1991), 67 C.C.C. (3d) 385 (B.C.C.A.), wherein Mr. Justice Wood, as he then was, noted that the power of a police officer to arrest on the basis of “reasonable grounds” (s. 495(1)(a)) is distinct from the power to arrest on the basis of “finds committing” (s. 495(1)(b)) (at 405):

 

Taking into account the words of the statute and the decisions of the Supreme Court of Canada in Biron and Storrey, I am of the view that s. 495(1)(a) provides for a power of arrest where an indictable offence has already been committed or is about to be committed.  Section 495(1)(b) covers those situations where a peace officer actually finds someone in the process of committing an apparent criminal offence.

 

[54]            More recently in R. v. Sirois, [1999] J.Q. No. 1079 (QL) (C.A.), the Court stated (unofficial translation):

 

13        It is not necessary for a citizen making an arrest under s. 494(1)(a) to have personal knowledge of all the factors that lead him to conclude that the person is “in the process” of committing an offence; it can be deduced from a series of circumstances that a person is apparently in the process of committing an offence, and that offence must be apparent to a reasonable person in the same circumstances:  R. v. Vance (1979), 48 C.C.C. (2d) 507 (Y.T.C.A.).  In the Court's opinion, this was true in the case at bar.

 

James Morton

Steinberg Morton Hope & Israel

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