NFA Briefing Document 9, Version 5
Parliament established an administrative structure and a set of administrative procedures enacted to control and deal with the problems that arise from the use of force to protect human life from criminal violence. People–including police officers–are often confused by the scattering of the various relevant provisions. They exist, but they are not placed together in the Criminal Code.
It is necessary to examine certain sections of the Criminal Code to determine when a person may legally use force–including firearms–to protect human life from criminal violence. The relevant provisions are:
Criminal Code section [CC s.] 494 (emphasis added), which says, in part:
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.
494. (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 a person in lawful possession of property may arrest without warrant a person whom he finds committing a[ny] criminal offence on or in relation to that property.
494. (3) Any one other than a peace officer who arrests a person without warrantshall forthwith deliver the person to a peace officer.
Those are the ways in which any individual is authorized to arrest another individual. If one is faced with a situation where one may have to use force in order to protect human life from criminal violence, it is very important to try and prevent violence before using it. One can do that by attempting to arrest the person, if a crime is being committed.
Assault is defined [CC s. 265 (emphasis added)] as:
265. (1) A person commits an “assault” when
(a) without the consent of another person, he applies force intentionallyto that other person, directly or indirectly;
(b) he attempts or threatens, by an act or gesture, to apply force to another person, if he has, or causes that other person to believe on reasonable grounds that he has, present ability to effect his purpose; or
[Notice that; he commits an assault if he only threatens to apply force to another person.]
(c) while openly wearing or carrying a weapon or an imitation thereof, he accosts or impedes another person or begs.
265. (2) This section applies to all forms of assault, including sexual assault, sexual assault with a weapon, threats to a third party or causing bodily harm and aggravated sexual assault.
266. Every one who commits an assault is guilty of
(a) an indictable offence…
Therefore, as soon as the thought comes, “My God! I am, or someone under my protection is being, assaulted!” one should always shout, “You are under arrest!”
Shouting that out transforms the situation. It is no longer one of self-protection (which is allowed by the Criminal Code, but only by way of the weak protections offered to the victim by CC s. 27, 34 and 35). Shouting “You are under arrest!” transforms the situation into one in which the arresting person is protected by the stronger protections of CC s. 25. Unless the criminal then submits peacefully to arrest, the criminal will probably be guilty of resisting arrest, violating CC s. 270(1)(b) (emphasis added):
270. (1) Every one commits an offence who…
(b) assaults a person with intent to resist or prevent the lawful arrest or detention of himself or another person…
What protections apply to a person who is arresting someone under CC s. 494?
CC s. 25 (emphasis added) says, in part:
25. (1) Every one who is required or authorized by law to do anything in the administration or enforcement of the law
(a) as a private person…is, if he acts on reasonable grounds, justified indoing what he is required to do and in using as much force as is necessary for that purpose…
25. (3) …a person is not justified for the purposes of subsection (1) in using force that is intended or is likely to cause death or grievous bodily harm unless he believes on reasonable and probable grounds that it is necessary for the purpose of protecting himself or any one under his protection from death or grievous bodily harm.
Study that sequence carefully. CC s. 494 authorizes one to arrest anyone found committing an indictable offence, anywhere, or any criminal offence on, or in relation to, one’s property. It also provides the same protections to the arresting individual that it provides to a police officer.
CC s. 265 defines “assault”–the most likely reason for making an arrest–broadly, and brings a criminal guilty of assault (by the actual or threatened use of force) into the CC s. 494(1)(a) “indictable offence” zone, allowing arrest wherever the offence is taking place.
Where one is trying to arrest someone for a property offence (attempted theft, vandalism, etc.), CC s. 270(1)(b) upgrades that offence into the CC s. 494(1) “indictable offence” zone if the criminal resists arrest by threatening or using force against the arresting person.
Then CC s. 25(1) justifies one who does, or tries to, make an arrest through or partly through the lawful real or threatened use of force. It authorizes the use of force in “doing what he is required to do (arresting the criminal) and in using as much force as is necessary for that purpose (arresting the criminal).” Therefore, CC s.25 apparently authorizes the use of whatever force is necessary to complete the arrest.
Then CC s. 25(3) says one cannot use force of a kind likely to cause death or grievous bodily harm unless it is necessary to protect either one’s self or a person under one’s protection from “death or grievous bodily harm.” One cannot shoot someone who is stealing hubcaps, but one can arrest him. If he resists arrest violently enough to cause reasonable fear of death or grievous bodily harm, the use of deadly force may be justified.
Those protections apply to a person who is trying to make an arrest. The provisions that protect one who is simply acting in self-defence are weaker:
CC s. 27 (emphasis added) says, in part:
27. (1) Every one is justified in using as much force as is reasonably necessary
(a) to prevent the commission of an offence
(i) for which, if it were committed, the person who committed it might be arrested without warrant, and
(ii) that would be likely to cause immediate and seriousinjury to the person or property of anyone; or
(b) to prevent anything being done that, on reasonable grounds, he believes would, if it were done, be an offence mentioned in paragraph (a).
CC s. 34 (emphasis added) says, in part:
34. (1) Every one who is unlawfully assaulted without having provoked the assault is justified in repelling force by force if the force he uses is not intended to cause death or grievous bodily harm and is no more than is necessary to defend himself.
34. (2) Every one who is unlawfully assaulted and who causes death or grievous bodily harm in the assault is justified if
(a) he causes it under reasonable apprehension of death or grievous bodily harm from the violence with which the assault was originally made or with which the assailant pursues his purposes; and
(b) he believes, on reasonable grounds, that he cannot otherwise preserve himself from death or grievous bodily harm.
From the above, it seems that Parliament intended to recognize the right to the use of force to protect human life from criminal violence in cases where the assistance of a peace officer was not immediately available to the victim. Parliament also intended to provide protection for those attempting to arrest wrongdoers.
The use of a firearm or other weapon by the victim or protector to protect human life from criminal violence is not excluded by the relevant legislation.
The protections granted by CC s. 27 and 34 are weaker than the protections granted by CC s. 25, and it is much more difficult to prove that they are applicable to the event. Situations in which self-protection becomes necessary are often messy and confused.
A police officer carries a loaded firearm for the primary purpose of protecting human life from criminal violence–his own, or lives of those under his protection. An officer is not authorized to use that firearm to protect property, or to threaten an individual who is no threat to the officer or anyone else, or to shoot a criminal who is fleeing the scene of a crime. He may not use it unless he is acting to protect human life from criminal violence.
By the very nature of police work, there is a small possibility that the police officer will, some day, need that loaded firearm for that purpose. It is the act of a reasonable person for him to carry that loaded firearm into all situations where he may need it.
It is often the fact that the police officer has the power to arrest a criminal that prompts the criminal to resist arrest with deadly force. That can easily escalate a property crime into the realm of a deadly force confrontation and trigger the police officer’s right to use his firearm for “protection of human life from criminal violence.”
Where an individual is faced with a situation where he may be forced to protect human life from criminal violence, he is abruptly in the same situation that a police officer is in during his activities. For example, a farmer may investigate an unknown vehicle in his pasture. Such a situation may be an attempt to steal cattle or horses, and may bring into play the farmer’s CC s. 494(2) power to arrest a criminal who is stealing property.
It is the act of a reasonable person for the police officer to have a loaded firearm with him when he may require it to protect human life from criminal violence. Similarly, it is the act of a reasonable person who is investigating possibly criminal activity to take with him a loaded firearm if he is competent to handle and/or use it safely in such circumstances. He should know how to handle and use the firearm safely, and know the relevant laws.
The escalation from simple theft to resisting arrest by criminal assault, with or without a weapon, is a distinct possibility, and a reasonable man would prepare to deal with that. He may reasonably do that before he is even certain that a crime is in progress, or that arrest is an avenue open to him in dealing with the situation.
However, any person dealing with such a situation should be aware of CC s. 87.1(1) (emphasis added):
87.1 (1) Every person commits an offence who, without lawful excuse, points a firearm at another person, whether the firearm is loaded or unloaded [emphasis added].
The penalty is up to five years in prison. Therefore, one should never point a firearm at another unless it is clearly necessary, and the only allowable purpose is to protect human life from criminal violence in a situation where there is a real threat of death or grievous bodily harm. If only a property offence is involved, that is insufficient; the individual must be in a state of reasonable fear of death or serious bodily injury.
In the material above, a farmer is used as the illustration in the situation because rural crime is usually committed at a long distance from possible peace officer assistance. If the crime in progress is taking place in an urban setting, the above rules are correct–but the likelihood of the person who is protecting human life from criminal violence being arrested and charged are considerably higher.
In any situation where an individual who is not a peace officer acts to arrest a criminal, or acts to protect human life from criminal violence, it is probable that charges will be laid against that individual. Many police officers do not like a “civilian” doing work that “belongs” to a police officer, and many Crown prosecutors believe that such behavior should be discouraged.
Therefore, charges are often laid against those who are innocent of all wrongdoing. The cost of defending the accused is very high, and often, such cases are lost in the courts.
Protection of human life from criminal violence and arresting the criminal should therefore be used only if the need is great and the circumstances are clear.
If an individual believes that it may someday be necessary to exercise those protected powers, he or she should adopt this concept now, not when the need arises:
At the moment that I realize that I am going to have to protect human life from criminal violence, I will shout, “You are under arrest!” before I do anything else.
If that is strongly built into one’s brain, it is the realization that will trigger the shout.
It is far, far better to be in court dealing with an attempted arrest than it is to be in court dealing with a fight that you claim was self-defence. Self-defence is just too hard to prove, and the Criminal Code provisions about it are too weak.
If the person submits to arrest, and the arresting person takes custody of him, the arresting person should immediately:
(a) tell the arrested person who the arresting person is; for example, “I am the owner of this store/property/thing,”
(b) tell the arrested person again that he is under arrest, tell the arrested person exactly why he is under arrest and what law he has broken, (assault, theft, vandalism, et cetera; Criminal Code section number not required), and
(c) tell the arrested person that you are now going to deliver him to a police officer, so his Charter rights can be dealt with by the police.
If you do not do those things, you have not done anything wrong. A recent Court of Appeal decision ruled that a private citizen does not have to do those things when arresting someone, but a police officer does.