Tuesday 28 July 2009

Making a citizen's arrest

Every citizen has the right to arrest any one who he sees is committing a crime or after having committed a crime, is escaping from those who are chasing him.

Something like this is what occurred in Toronto on May 23rd, 2009 when a thief allegedly stole some tree plants from a Chinatown store. The owner of the store saw the thief returning to the store, he confronted the thief about the previous theft. The thief then took off. The owner of the store and two employees immediately chased after the thief. The caught up to him and seized him. They tied him hand and foot and then placed him in the back of their van and returned to their store. Then they called the police.

Despite the fact that the thief was accused of stealing the plants and was apprehended by the owner and his employees and then returned to the store in the van and considering the fact that they then called the police, the owner was charged by the police with kidnapping and assault charges.

If he assaulted the thief in a manner that would be considered, excessive, then the assault charge would be justified. However, I don’t think that was what happened. Obviously, he and the other two men would have to apprehend him and use force to keep him still so that they could secure him hand and foot. Is that any different than a police officer using force to handcuff a suspect?

If it turns out that the so-called thief didn’t steal any of the tree plants, then the citizen’s arrest was illegal. However, the problem facing the owner of the store is that he began chasing the so-called thief after he had returned to the store. That is illegal. Let me explain why.

The authority for a citizen’s arrest under federal criminal law is set out in section 494 of the Criminal Code which states;

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.

The Code further states;

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.

The Code also states;

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

In order for the owner of the store to apprehend and arrest the so-called thief, the man he is chasing has to have just committed a crime and is running away. That is not what occurred at the moment when the thief had returned to the store. If he previously stole the tree plants, he wasn’t doing it when the owner confronted the man after the man returned to the store; therefore the man wasn’t committing a crime at that moment. That being as it is, when the owner and his employees seized the man and forcibly held him while they secured his hands and feet, they were in fact assaulting him. When they forcibly removed him from where they apprehended him and placed him in a van, they in effect, had kidnapped him.

The summary power to apprehend without a warrant given by the statute, applies only to cases where the offence is apparent and is in course of perpetration by the offender, before the eyes of the citizen. The intention of the statute evidently is; that the criminal should be apprehended immediately on the commission of the offence. It is sufficient if the person apprehended has been seen in a position which justified the belief that he had committed the offence. It has been held that where a statute gives a power to arrest a person found committing an offence, he must be apprehended in the act, or in such continuous pursuit that from that act until the apprehension, the circumstances constitute one transaction. In the case of the store owner and the so-called thief, there were two transactions. The first being the alleged theft and the second being the return of the alleged thief to the store.

The owner of the store may very well had reason to believe that the so-called thief had previously stolen the tree plants but that didn’t justify him arresting him. What he should have done is phone the police and have them arrest the man. I appreciate the fact that there is always the problem that by the time the police send a constable to the store, the man may be gone. But if the owner had chosen to call the police instead of apprehending the co-called thief himself with his employees, he wouldn’t be facing these two serious charges.

If he really wanted to arrest the man whom he believed was the thief who had previously stolen his tree plants, he should have watched the man when he returned to the store and if the man stole more tree plants, then the owner would be justified in apprehending him and if the man tried to escape, the owner would be justified in chasing him for the purpose of making a citizen’s arrest.

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