Criminal Liability
| Author | Norman J. Groot |
| Pages | 113-206 |
CHAPTER
4
CRIMINAL
LIABILITY
The
purpose
of
criminal
law is to
protect
the
health,
welfare,
morals,
and
safety
of the
pub-
lic
by
prohibiting conduct that threatens society. This chapter will review Canadian
crimi-
nal law
that
is
most applicable
to the
functions
of
private sector investigators.
The
sections
cover
arrest, search,
and the use of
force;
surveillance-related criminal
offences;
pretext
crimes;
property
offences;
and
offences
pertaining
to the
administration
of
justice.
In the
book that
was the
precursor
to
this
one,1
the
topic
of
search warrants
was
covered
under
the
chapter
on
criminal liability. However, because
it is
generally accepted that
the
execution
of
Criminal
Code2
search warrants must
be
supervised
by a
peace
officer,
and
because
the law
with respect
to
peace
officer
authority
and
liability
is
beyond
the
scope
of
this book,
the
topic
of
search warrants
is now
covered
in
Chapter
10
—
Litigation
Issues.3
The
initial section
of
this chapter
on
arrest,
search,
and use of
force
is
reviewed
in
more
depth than
the
sections that
follow.
The
reason
for
this
is
because
the
differences
in law
between
the
authorities
and
obligations
of
private sector investigators
and
their public sec-
tor
counterparts
are
more pronounced here than
in any
other area.
To
more
fully
under-
stand these
differences,
a
more detailed discussion
is
included.4
4.1
ARREST
Arrests
by
private persons
are
generally
an
uncommon occurrence
in
Canadian society
because
of the
average
citizen's
reluctance
to get
involved
and his or her
ignorance
on
such
Groot,
N.J.,
Legal
Liability
of
the
Canadian
Private
Investigator
(Toronto:
Andijk
Inc.,
1998).
Criminal
Code
of
Canada,
R.S.C.
1985,
c.
C-46
[Criminal
Code].
See
Section
10.2
—
Search
Warrants
and
Private
Investigators.
For
further reference
to
Criminal
Code
matters,
please
consult
the
following
annotated
Canadian
Criminal
Codes:
J.D.
Watt
&
M.K.Fuerst,
The
2001 Annotated
Tremeear's
Criminal
Code
(Toronto:
Carswell,
2000); E.L.
Greenspan
& M.
Rosenberg,
Martin's
Annual
Criminal
Code
2001
(Aurora:
Canada
Law
Book,
2000).
113
1
2
3
4
114
CANADIAN
LAW AND
PRIVATE
INVESTIGATIONS
matters. Exceptions
are
private
or
store investigators arresting shoplifters
for
theft
and
secu-
rity guards arresting persons
who
refuse
to
leave
a
private premise
for
trespassing. Outside
of
the
above circumstances,
it is
only
on the
rare occasion when
a
private investigator
may
find
herself
in a
position
where
the
question
of
arresting
a
person
may
arise.
Regardless
of how
infrequent
the
situation occurs,
it is
essential
for a
private investiga-
tor
to
have
a
working knowledge
of the
citizen's powers
of
arrest.5
In
this section,
a
private
investigator's authority
to
arrest
and the
procedure
to be
followed
will
be
discussed.
Specifically,
the
issues
to be
addressed include
a
citizen's
(and private
investigator's)
authority
to
arrest;
the
distinction between
the
labels
"agent
of the
state" versus "private citizen"
and why
this
is
important;
the
distinction between arrest versus detention
and why
this
is
important;
the
importance
of
being able
to
identify
the
grounds
for
arrest;
and
the
procedure required
to
make
a
legal arrest.
This section will conclude with
a
review
of the
authority
to
arrest
by
foreign
bail bondsmen.
4.1.1
Authority
to
Arrest
The
authority
of a
private person, such
as a
private investigator,
to
arrest another private
person
was
codified
by
Parliament
in
section
494 of the
Criminal
Code.
Section
494
provides:
494(1)
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.
(2)
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.
Further
information
on a
citizen's powers
of
arrest
can be
found
in
"Powers
of
Arrest
and the
Duties
and
Rights
of
Citizens
and
Police,"
[1962]
Canadian
Bar
Papers
131,
[1963] Lectures
of
the Law
Society
of
Upper Canada.
5
CHAPTER
4:
Criminal
Liability
and the
Private
Investigator
115
There
are a few
words
from
this section that require
further
explanation.
Section
494(1
)(a) provides that
a
private person
can
only arrest
for
indictable
offences.
Generally,
indictable
offences
are
offences
that
are
more serious
in
nature.6
It is
imperative that
if a
private sector investigator
is
going
to
attempt
to
effect
an
arrest
and to
avoid criminal
and/or
civil liability,
he
should have
found
the
offence
being committed
and
be
certain that
the
offence
for
which
the
arrest
is to be
made
is an
indictable
or
hybrid criminal
offence.
Also note that section
494(1
)(b), which
refers
to the
authority
of a
citizen
to
arrest
a
per-
son who is
being
freshly
pursued,
is in
reference
to
suspects being pursued
by
persons
who
have
lawful
authority
to
arrest.
Therefore,
a
citizen
not
only
has the
authority
to
arrest
a
suspect
pursued
by
police,
but
also
the
authority
to
arrest
a
suspect being pursued
by a
pri-
vate
citizen
who has the
authority
to
arrest
found
in
section
494(1
)(a).
Section 494(2) provides that
a
private person
can
arrest perpetrators
for
criminal
offences
he finds
being committed
in
relation
to
private property
of
which
he is the
owner
or the
agent. This section
is
more applicable
to
security guards
in
their
function
of
pro-
tecting private property.
The
distinction
made between
the
power
to
arrest
by a
private per-
son for any
criminal
offence
in
section 494(2)
and
indictable
offences
as
dictated
in
section
494(1)
is
noteworthy however.
The
inclusion
of
summary conviction
offences
under
a
cit-
izen's
power
of
arrest
in
section 494(2) provides
a
wider power
of
arrest
for an
owner
of
property
or his or her
agent than
for
general citizen arrest purposes.
The
provisions
of the
Canadian
Charter
of
Rights
and
Freedoms
that
are
relevant
to
arrest
are as
follows:
7.
Everyone
has the
right
to
life,
liberty
and
security
of the
person
and the right not to be
deprived thereof except
in
accordance with
the
principles
of
fundamental justice.
9.
Everyone
has the
right
not to be
arbitrarily detained
or
imprisoned.
10.
Everyone
has the right on
arrest
or
detention
(a) to be
informed promptly
of the
reasons therefor;
(b)
to
retain
and
instruct
counsel without delay
and to be
informed
of
that
right;
and
(c)
to
have
the
validity
of the
detention determined
by way of
habeas
corpus
and
to be
released
if the
detention
is not
lawful.
These
Charter
provisions will
be
discussed
in the
following sections:
4.1.1.2
—
Arrest versus
Detention; 4.1.2.3
—
Informing
the
Arrestee
of the
Reason
for
Arrest; 4.1.2.4
—
Informing
the
Arrestee
of the
Right
to
Counsel; 4.1.2.5
—
Informing
the
Arrestee
of the
Right
to
Silence;
and
4.1.2.6
—
Delivering
the
Arrestee Forthwith
to a
Police
Officer.
Section
34(1
)(a)
of the
Interpretation
Act,
R.S.C.
1985,
c.
1-21,
provides that hybrid
offences
are
deemed indictable unless elected otherwise
by the
Crown. Also
see R. v.
Huff(\919\
(Alta.
C.A.).
6
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