The concerned father I wrote about last week was unable to use 害羞草研究所渃itizen害羞草研究所檚 arrest害羞草研究所� to excuse his minimal assault (grabbing the arm) of his daughter害羞草研究所檚 tormenter. I am going to explain why. And whether it can be used to excuse assaulting a would-be thief checking vehicle door handles in residential driveways.
Any application of force to another person, without their consent, is an assault pursuant to section
But our Criminal Code allows for the application of force to another person in certain circumstances, one being when you are making a 害羞草研究所渃itizen害羞草研究所檚 arrest害羞草研究所�, which falls under
Which brings us to the case I cited last week, of Mr. Wilson害羞草研究所檚 8 year old daughter had been bullied by a 17 year old boy. After the girl害羞草研究所檚 bicycle was smashed a second time, Mr. Wilson came down to the neighbourhood park and had her daughter point out the boy.
Mr. Wilson and the boy told dramatically different stories about what happened next. The boy害羞草研究所檚 version was serious enough that Mr. Wilson was the one charged. At trial, the judge believed Mr. Wilson害羞草研究所檚 version which was that the only time he touched the boy was when he had grabbed his arm saying: 害羞草研究所淭his will end now. We can go to the police or your parents害羞草研究所�.
However minimal it might be, grabbing the boy害羞草研究所檚 arm was an assault. Mr. Wilson tried to use section 494, the 害羞草研究所渃itizen害羞草研究所檚 arrest害羞草研究所� provision as a defence.
Section 494 is very specific.
It allows you to arrest someone who is actually committing an indictable offence (s. 494(1)(a)). Leaving aside what 害羞草研究所渋ndictable害羞草研究所� means, this did not help because the boy was not committing an offence at the time.
It also allows you to arrest someone who you believe has committed a criminal offence. But only if the offender is being freshly pursued by those with the lawful authority to make an arrest (s. 494(1)(b)). Not applicable either.
Mr. Wilson was convicted. Was that a travesty of justice? It sure feels so. But citizen害羞草研究所檚 arrest provisions are restricted for good reason. Physical confrontations, particularly between criminals and those without police training, are recipes for disaster.
So what about if you catch someone wandering down your street checking door handles? They害羞草研究所檝e not actually stolen anything, but they害羞草研究所檙e obviously up to no good. Are they committing an offence that allows you to make a citizen害羞草研究所檚 arrest?
covers the situation, but only if it happens at night: 害羞草研究所淓very person who, without lawful excuse, loiters or prowls at night on the property of another person near a dwelling-house situated on that property is guilty of an offence害羞草研究所π卟菅芯克鶟.
But it is not an 害羞草研究所渋ndictable害羞草研究所� offence, so section 494(1)(a) referred to above is not applicable.
Fortunately for the more vigilante minded among us, the citizen害羞草研究所檚 arrest provisions also allow the owner of property (or someone authorized by the owner) to make a citizen害羞草研究所檚 arrest if you catch someone in the act of committing any old criminal offence (indictable or not) related to the property (s. 494(2)).
So a neighbourhood watch patrol, armed with the authority of all property owners in a neighbourhood, could make a citizen害羞草研究所檚 arrest of someone they catch prowling around properties in the neighbourhood.
But before you jump into action against a prowler, please consider the following:
- Your purpose must be making an arrest. It cannot be the dishing up of vigilante 害羞草研究所渏ustice害羞草研究所�;
- Whatever tough guy you think you are, a frightened and threatened offender might cause you harm;
- You are bound by the same restrictions as the police, set out in and
- Immediately after making the arrest, you must deliver the offender to the police (section 494(3)).
And you face the risk realized by Mr. Wilson. The offender might tell a tall tale to the police that could result in you being the one facing criminal charges. And if you are found to have used excessive force that injures the offender, you could face a civil lawsuit and have to pay compensation.
Next week, I will conclude this series with a discussion about what you are permitted to do if you catch someone in the act of actually stealing your property, or having entered your home.
Missed last week害羞草研究所檚 column?
About Paul Hergott, Personal Injury Lawyer:
Paul began practicing law in 1995 in a general litigation practice. Of the various areas of litigation, he became most drawn to and passionate about pursuing fair compensation for personal injury victims, which has gradually became his exclusive area of practice. Paul害羞草研究所檚 practice is restricted to acting only for the injured victim, never for ICBC nor for other insurance companies.
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