Since Bill C-26 came into effect in the fall of 2012, there have been a number of changes to the Criminal Code of Canada. One of the changes has been an expansion of the power of a private citizen to make an arrest under section 494(2) of the Criminal Code. Before this change was implemented, the owner of private property, or a person authorized by the owner “may arrest without a warrant a person whom he find committing a criminal offence on or in relationship to that property.” This meant that a private citizen had the power to arrest someone who was in the course of committing the offence. After the change, however, the law was expanded to permit a private citizen’s arrest to take place after the offence is already committed, as long as the arrest occurs “within a reasonable time after the offence is committed.”
The change might seem minor, but we should be mindful of any expansion of powers that have the potential intrude on individual liberties. This is especially true where these powers are wielded by private citizens who are not versed in the Canadian Charter of Rights and Freedoms – a Constitutional document that guarantees all Canadians certain rights upon arrest and detention. A private citizen may not know, for example, that you must inform the person being arrested right away of the reason why they are being arrested or, that the person being arrested has the right to speak with legal counsel without delay after the arrest.
The problem of not having one’s Charter rights respected in the context of a private citizen’s arrest is less of an issue when we are dealing with private security guards. Private security guards derive their power to arrest individuals from the same section of the Criminal Code as a private individual citizen – that is, section 494(2). The difference is that private security guards are usually trained to make proper arrests and ensure that Charter rights are respected. For example, it is not uncommon for a loss prevention officer at a store to inform an arrestee of their right to legal counsel and to provide them with a phone to make that essential call.
Another issue that arises with the arresting power of private citizens, including security guards, is that it is unclear at law whether or not they are even bound to respect the Charter rights of those they arrest. The reason for this is because the Charter is intended to bind only governmental agents, such as the police. Can private citizens or security guards be categorized as governmental agents in the context of making an arrest? The case law is mixed. For example, in Alberta and Manitoba, a citizen’s arrest is considered to be a government function and therefore the Charter applies in those circumstances.
“In my view the arrest of a citizen is a governmental function whether the person making he arrest is a peace officer or a private citizen. I reach this conclusion from a consideration of the long legal history of citizen’s arrest from its common law origins to the statutory expression of the present powers of arrest contained in the Criminal Code of Canada or in the Petty Trespass Act.” [R. v. Lerke, 1986 ABCA 15]
This is not the case in Ontario, Nova Scotia and British Columbia. The Supreme Court of Canada also takes a limited view of when Charter rights should be engaged when the actor is not clearly a governmental agent. For example, in, a case involving the search of a locker by a security guard at a bus station, the Supreme Court of Canada unanimously held that the private security guard conducting the search was not bound to respect the Charter rights of the individual notwithstanding the fact that the search closely resembled a police function.
“While there has been a growing use of private security in Canada and while private security officers arrest, detain and search individuals on a regular basis…[t]he exclusion of private activity from the Charter was not a result of happenstance. it was a deliberate choice which must be respected.” [R. v. Buhay  1 S.C.R. 631]
However, in a later Supreme Court decision that same year [R. v. Asante-Mensah,  2 S.C.R. 3] in a case dealing with use of reasonable force in a citizen’s arrest, the Court noted that the question of whether or not the Charter should apply in the context of a citizen’s arrest has not yet been decided. This means that the question is still open, and at some point in the future, the Supreme Court of Canada may make a decision on the application of Charter rights in the context of a citizen’s arrests once and for all.
*note: The information on this page is not legal advice.