Q: My wife and I were driving in town at night and saw someone breaking into a store. I wanted to stop but she said no, that I’d just get into trouble. We called the police but the thief got away. Could I have done anything?
A: As with many issues, there are two ways of looking at this one: the legal perspective and the practical perspective.
Legally, there is still the power to make a citizen’s arrest in Canada. However, you need to bear in mind that there are restrictions on this power and you do not have the same abilities that a peace officer has to make arrests.
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The law in this area is set out in the Criminal Code of Canada, as well as in reported court cases interpreting the code.
First, there are only certain types of offences for which a citizen can make an arrest. In Canada there are two types of offences, summary and indictable.
Indictable offences are the more serious criminal offences such as large frauds, burglary, sexual assault and murder.
Summary conviction offences are less serious and have lighter punishment. They include offences such as mischief, causing a disturbance and small thefts.
An ordinary citizen can make an arrest only if it is an indictable offence. If you’re not sure what it is but it doesn’t seem serious to you, then you should probably call the police and not become directly involved.
Citizens are allowed to arrest people who they actually find committing an indictable offence. So if your neighbour tells you he was assaulted and harmed by a particular person and you didn’t see it, you cannot go and arrest that person.
Essentially, you have to catch them in the act so that you have personal knowledge about the offence.
One exception to this is to assist police officers. If you see the police chasing someone, and you believe that person is being chased because he committed an offence, you can assist the police in detaining that person.
Another important facet to citizens’ arrests in Canada is the use of force.
Ordinary citizens are only allowed to use reasonable force that is in proportion to the force or resistance being used against them. Let’s face it, if a non-police person walks up to someone and says she is making a citizen’s arrest, the suspect will laugh, run away or tell her to get lost.
When arresting someone you are allowed to take his arm to indicate he is being detained. If he resists, you can gradually escalate the level of force used to make the arrest and to defend yourself.
You cannot hit someone in the head without warning, then announce you are making a citizen’s arrest. The case law books are full of people who have gotten into trouble because of using too much force, even when their intentions were good.
Once you arrest someone, you have a duty to call the authorities or convey the arrested person into the custody of a police officer as soon as possible.
From a common-sense point of view, a person should be careful in such a situation. Even following someone who is leaving the scene
of a crime can be dangerous if he spots you.
Most police officers will tell you
to report the incident and observe from a safe distance. They are worried that if you intervene, someone (probably you) will get hurt.
Rick Danyliuk is a practising lawyer in Saskatoon with McDougall Gauley LLP.
He also has experience in teaching and writing about legal issues. His columns are intended as general advice only. Individuals are encouraged to seek other opinions and/or personal counsel when dealing with legal matters.
