Vol. 147, No. 4 — February 13, 2013

Registration

SI/2013-5 February 13, 2013

CITIZEN’S ARREST AND SELF-DEFENCE ACT

Order Fixing March 11, 2013 as the Day on which the Act Comes into Force

P.C. 2013-16 January 31, 2013

His Excellency the Governor General in Council, on the recommendation of the Minister of Justice, pursuant to section 4 of the Citizen’s Arrest and Self-defence Act, chapter 9 of the Statutes of Canada, 2012, fixes March 11, 2013 as the day on which that Act comes into force.

EXPLANATORY NOTE

(This note is not part of the Order.)

Proposal

This Order fixes March 11, 2013, as the date of the coming into force of An Act to amend the Criminal Code (Citizen’s Arrest and the Defences of Property and Persons), assented to on June 28, 2012. This Act is also known as Citizen’s Arrest and Self-defence Act. This Order is made pursuant to section 4 of this Act.

The Citizen’s Arrest and Self-defence Act, formerly referred to as Bill C-26, amends the Criminal Code to enable a person who owns (or has lawful possession of) a property, or persons authorized by them, to arrest, within a reasonable period of time, a person who has committed a criminal offence on or in relation to that property. It also amends the Criminal Code to simplify the provisions relating to the defences of property and those relating to the defences of persons.

Objective

The amendments to the citizen’s arrest powers clarify how individuals may respond to immediate threats to their property, when it is not feasible in all the circumstances for a peace officer to make the arrest. The amendments to self-defence and defence of property provide clear statutory guidance for the police and for prosecutors to exercise their discretion to lay charges or to proceed with prosecutions. Finally, by setting out the law more clearly, the amendments to the citizen’s arrest powers and the amendments to the defences of property and persons provide guidance to courts and juries with the intention to reduce appeals on the grounds of errors based on the complexity of the former law.

Background

The Criminal Code specifies the particular circumstances where an individual can use reasonable force against another individual.

A number of high profile cases in the last few years generated public concern about the scope of the citizen’s power to arrest others who commit crimes in relation to their property. The power of citizen’s arrest was only exercisable to apprehend a suspect who was in the process of committing a crime. Arrests made after the crime has been committed were not authorized, and could result in a criminal conviction of the person carrying out the arrest.

The reform to the law relating to the citizen’s arrest powers addresses the limitation that existed in the Criminal Code by

• (a) expanding the temporal limits on the power of citizen’s arrest [subsection 494(2) of the Criminal Code]; and
• (b) making clear that the use of force provisions (section 25 of the Criminal Code) apply to a citizen’s arrest (section 494 of the Criminal Code).

In relation to self-defence and defence of property, there have been long-standing problems associated with the manner in which the law is drafted and expressed in the Criminal Code. There are currently four sections describing the law of self-defence as it applies in different circumstances, and five sections describing the defence of property as it applies in different circumstances. While the outcome of cases is generally viewed as satisfactory, the law was articulated in a confusing and complicated manner. As a result of the complexity of the law, charges may have been laid in cases where they would not have been if the laws were more clearly understood. As well, the confusing nature of the law led to many appeals based on errors in jury instructions.

The reform to self-defence and defence of property provisions addresses these problems by

• (a) simplifying the defence of property by replacing five provisions (sections 38 to 42 of the Criminal Code) with a single defence that sets out the basic elements of the defence in a clear and simple manner; and
• (b) simplifying self-defence provisions by replacing four provisions (sections 34 to 37 of the Criminal Code) with a single defence that sets out the basic elements of the defence in a clear and simple manner. The new law of self-defence will also contain a list of relevant factors to aid the court or jury in determining whether the actions taken were reasonable in the circumstances.

Implications

The public’s first response when they witness a crime should always be to call the police. However, it is recognized that the police are not always able to attend, within a reasonable period of time, to the scene of a crime in all circumstances.

This new legislation allows a person to make a citizen’s arrest, within a reasonable period of time, for a criminal offence relating to their property when it is not feasible in all the circumstances for a peace officer to make the arrest. The concept of arrest within a reasonable period of time is new to the law of citizen’s arrest and will be the subject of judicial interpretation. It is anticipated that courts will consider the reasons for citizen’s arrest and the length of time after the offence was committed in determining whether the arrest was lawful.

All arrest situations are unpredictable and potentially dangerous. Citizens should only engage in defensive conduct or undertake arrests with extreme caution. Even more caution is necessary where arrests are not made at the site of the crime and are made some time after the crime is committed since there is a higher the risk of mistaken identification of the suspect.

Simplified self-defence and defence of property provisions are expected to make it easier for police, prosecutors, courts and juries to determine whether a claim to one of the defences should be successful.

Consultation

In developing various aspects of the legislation, consultations were held with provincial and territorial attorneys general, police forces, private security agencies and academics.

Departmental contact

Joanne Klineberg
Senior Counsel
Criminal Law Policy Section
Department of Justice Canada
Telephone: 613-957-0199