SECURITY MANAGEMENT with Mike Burgess
HEADS UP!
O
n Feb. 17, 2011, Bill C-60 received first reading. Just more than a month later, it died when Canada’s minority Conservative government lost a non-con- fidence motion in the House of Com- mons, thus resulting in a federal election. Today, with Stephen Harper’s Conserva- tives in power again, this time with a ma- jority government, Bill C-60 is expected to be re-introduced before the end of the year. In essence, changes to Bill C-60 are intended to amend section 494(2) and also replace sections 34 to 42 of the Crim- inal Code. However, before getting into the specifics of the proposed Bill C-60, it is important to go back in time to see why these changes are on the table. The bill has its roots in the case of David Chen, the owner of a Toronto-based grocery store, and his employees, who were charged with assault and forcible con- finement after they “arrested” a well- known serial shoplifter who had stolen from the store an hour before, and then returned for more. The event was not per- sonally witnessed by any staff from the store; however, it was captured on video surveillance.
At trial, the defence argued that a cit-
izen’s arrest should not be limited to situ- ations where a person is arrested at the moment he/she commits a crime. The court agreed and ruled Chen and his em- ployees were making a S.494-sanctioned arrest. Section 494(2) presently reads: “Anyone 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 of- fence on or in relation to that property.” The proposed amendments to Bill C-60
24 SECURITY MATTERS • WINTER 2011
Canada’s Criminal Code is about to change. Are you ready for the impact the proposed amendments will have on your security operations?
will permit property owners, tenants, prop- erty managers, security guards and loss prevention officers, etc. to arrest a person without a warrant if they find him or her committing a criminal offence on or in re- lation to that property either “immedi- ately,” or “reasonably” later, but only if the person making the arrest believes on rea- sonable grounds that it is not feasible in the circumstances for a peace officer to make the arrest.
So what is a reasonable time after the of- fence is committed? What are reasonable grounds for believing that it is not feasible in the circumstances for a peace officer to make the arrest? Unfortunately, the amend- ment does not provide any answers. Moving forward, the answers will be based on a case-by-case analysis. For businesses, it makes sense to follow some clearly de- fined guidelines and stay well within the pa- rameters of the law. This is accomplished with well-written policies and risk manage- ment strategies supported by a court- defensible training program for due diligence. Briefly stated, here is what you need to know about amendments to Bill C-60: • Proposed changes do not mean prop- erty owners can arrest on “reasonable grounds,” nor does it broaden the prop- erty owners’ powers of arrest and make them similar to that of a peace officer, whose reasonable grounds can be based on information provided by a property owner. Remember, peace offi-
cers are “agents of the crown,” while civilians are not.
• Amendments are restricted to criminal offences “on or in relation to property.” It does not change section 494(1), which permits a citizen to make an ar- rest only if he or she finds a person ac- tually committing an indictable offence; or, if the citizen believes, on reasonable grounds, that the person has committed a criminal offence and is escaping from and is being freshly pursued by persons who have lawful authority to arrest the person.
• Proposed amendments alter the time period within which the property owner can make an arrest. It lengthens it from immediately to a reasonable time after.
• Proposed amendments do not change the definition of “finds committing” in S.494(2). For example, it does not equate the “real-time” viewing of a crime-in-progress on a surveillance monitor with the eyewitness viewing of the crime at, or near, the crime scene by the property owner. It does not, nor has it ever permitted, the real-time viewing using video by one security guard who in turns “radios” or “calls down” to another to make the arrest. At the end of the day, this is still circum- stantial evidence based on reasonable grounds and the actual “calling down” using whatever means, is still hearsay and inadmissible generally speaking.
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