The Citizen’s Arrest and Self-defence Act, SC 2012, c. 9 (Bill C-26) was introduced into Parliament on November 22, 2011. It recieved Royal Assent on June 28, 2012 and came into force on March 11, 2013 (SI/2013-0005).
Dubbed the Lucky Moose amendment, it was inspired by the case of a Toronto shopkeeper David Chen (whose grocery store was called the Lucky Moose), who was arrested in 2009 after he detained a shoplifter. The case spurred public outrage and debate over citizens’ rights to protect their property.
The Act makes changes to the Criminal Code relating to the power of a private citizen to make an arrest after they find a person committing a criminal offence on or in relation to property. It also amends the Code to simplify the provisions relating to the defences of property and persons.
“Canadians want to know that they are able to protect themselves against criminal acts and that the justice system is behind them, not against them,” Justice Minister Rob Nicholson said in a statement announcing the implementation of Bill C-26. The authority to make a citizen's arrent only applies when police cannot feasibly make an arrest, and citizens are still expected to contact police as soon as possible following an arrest.
However, the Canadian Civil Liberties Association believes that the new law will mostly be used by private security guards investigating shoplifting in malls, and worries about possible abuses of power.
“The concern is that now it gives them the power to not only check whether you have something in your purse … now it will give them the power to arrest you on the grounds that they reasonably believe it was you yesterday, or two days ago, or last week, or this morning, who stole something. And the arrestee has very little ability to debate them,” said Nathalie Des Rosiers, general counsel of the Canadian Civil Liberties Association.
A similar bill, Bill C-60, had been introduced in the 3rd Session of the 40th Parliament, but it died on the Order Paper when Parliament was dissolved on March 26, 2011.
Before March 11, 2013
Before this act came into force, the law of self-defence was found in sections 34 to 37 of the Criminal Code. They set out the different circumstances in which a private citizen could defend him or herself or another person against unlawful attack.
These provisions were described as unwieldy and confusing. In the case of R. v. McIntosh,  1 SCR 686, Chief Justice Lamer stated that sections 34 and 35 are “highly technical, excessively detailed provisions deserving of much criticism. These provisions overlap, and are internally inconsistent in certain respects.” The judgment of the majority in McIntosh, however, has itself been called “highly unfortunate” for further muddying the waters around the self-defence provisions, as the ruling seemed to go against the history of self-defence law.
Sections 38 to 42 of the Criminal Code codified the legal power of people to use force to protect their property against theft or damage.
In general, more force was permitted in the protection of dwelling-houses or real property than movable property. The Code also recognized that it was often difficult to distinguish between the defence of self and the defence of one’s property. Therefore, certain defences of property would also amount to self-defence, at least where the trespasser refuses to leave the premises.
Sections 25, 27, and 30 of the Criminal Code were also relevant to the role of a private citizen in the prevention of crime and the ability to use force to do so.
The powers of a citizen to arrest without a warrant were found in section 494 of the Criminal Code.
After March 11, 2013
Defence of Person
Section 2 of the Citizen's Arrest and Self-defence Act repealed and replaced sections 34 to 37 of the Criminal Code with a single self-defence provision that applies to any offence (new section 34 of the Code). This section states that a person is not guilty of an offence provided that they have a reasonable belief that either they or another person is being threatened with force and that the actions taken are for the purpose of defending against that force. The actions, which can include the use of force, must also be considered reasonable under the circumstances.
Under section 34, persons will not be guilty of an offence if:
- they believe on reasonable grounds that force, or a threat of force, is being used against them or another person;
- the actions that constitute the offence are committed for the purpose of defending or protecting themselves or the other person; and
- the act committed is reasonable in the circumstances.
It then states that, in determining whether the act committed is reasonable in the circumstances, the court shall consider the relevant circumstances of the person claiming the right of self-defence, the other parties, and the action taken, along with a non-exhaustive list of factors that includes:
- the nature of the force or threat;
- the extent to which the use of force was imminent and whether there were other means available to respond to the potential use of force;
- the person’s role in the incident;
- whether any party to the incident used or threatened to use a weapon;
- the size, age, gender and physical capacities of the parties to the incident;
- the nature, duration and history of any relationship between the parties, including any prior use or threat of force and the nature of that force or threat;
- any history of interaction or communication between the parties to the incident;
- the nature and proportionality of the person’s response to the use or threat of force; and
- whether the act committed was in response to a use or threat of force that the person knew was lawful.
Defence of Property
Section 2 also repealed and replaced sections 38 to 42 of the Criminal Code with a single defence of property provision (new section 35 of the Code). This new section permits a person in 'peaceable possession of property', or a person assisting someone they believe to be in peaceable possession of property, to commit a reasonable act (including the use of force) for the purpose of protecting that property from being taken, damaged or trespassed upon.
Arrest without Warrant
Section 3 of the Act amended the citizen’s arrest section of the Criminal Code, but only section 494(2). The powers of citizens to make arrests set out in section 494(1) remain as they were.
The amended section 494(2) applies to the owner or person in lawful possession of property or a person authorized by the owner or lawful possessor. Such a person may arrest without warrant a person whom he or she finds committing a criminal offence on or in relation to that property. But the amendment goes on to allow such a person to make an arrest within a 'reasonable time after the offence is committed.' Such an arrest can be made 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.
In addition, a new section 494(4) is added to the Criminal Code, clarifying that a person who makes an arrest under section 494 is a person who is authorized by law to do so for the purposes of section 25 of the Code. According to the Legislative Summary for the Act, the purpose of this amendment is to make it clear that use of force is authorized in a citizen’s arrest, but that there are limits on how much force can be used.
"The use of deadly force is only reasonable in very exceptional circumstances – for example, where it is necessary to protect a person from death or grievous bodily harm. The courts have clearly stated that deadly force is not considered reasonable in defence of property alone."
Department of Justice Backgrounder: Citizen's Power of Arrest and Self-Defence and Defence of Property
June 24, 2013