New citizen’s arrest law still has problems
Toronto criminal lawyer Roots Gadhia predicts the new law that expands citizen’s arrest powers will create more problems than it will solve.
“It is not well thought-out; this is not going to turn out well,” says Gadhia of the law that also is said to streamline self-defence provisions. Bill C-26: The Citizen’s Arrest and Self-Defence Act has received royal assent. Read Legislative Summary of Bill C-26
“Vigilante justice is a slippery slope and will cause not only serious physical consequences, but tie up the courts with matters being litigated to determine the legality of the arrests,” says Gadhia.
She notes that the new law “doesn’t change substantially from the previous one, but highlights and focuses on the fact that citizens should not be charged for defending their properties in circumstances similar to those in the Lucky Moose food mart (store owner David Chen was charged when he chased and held a repeat shoplifter. He was eventually acquitted.)
Minister of Justice Rob Nicholson says Bill C-26 is the government’s answer to Canadians demanding that “we change the law after David Chen was arrested for defending his property . . . we’ve responded by saying that we agree with their common sense.” Read Government Media Release
As a criminal defence lawyer, Gadhia says she is not opposed to the changes in principle, noting the buffer is that the citizen’s arrest “should only be carried out in circumstances where the police cannot feasibly be called.”
But her concern is over “those who react without thinking; engage an assailant or thief; cause physical harm to themselves or others and then litigate in the courts alleging that they were executing a citizen’s arrest.”
For example, she points to situations like, “The wannabe-cop who is highly-charged, or emotional individuals with violent streaks. Perhaps there is a racist store-owner who doesn’t like the kid who loiters outside his store and takes action based on those emotions rather than on pure self-defence. I’m just not convinced those types of situations have been taken into account and instead of achieving the desired goals will cause more time being eaten up in court litigating when that’s one of the things this law I believe was trying to address in the first place.”
Gadhia also notes that, “In essence, this change in the law now allows a citizen to make an arrest within a reasonable time after an offense has been committed. So think of the storekeeper who knows a local thief has stolen from him in the past. He could effect an arrest,” says Gadhia. “But, carry that forward, and the store owner now, in order to effect the arrest, beats and ties up the thief, throws him in the back of his van and drives off, albeit to take him to the police, but several hours later.
“Or perhaps, in an attempt to stop the thief he beats him with a weapon. Throw in a gun. The scenarios are endless and frightening,” says Gadhia.
She adds that the new law’s stipulation of “within a reasonable time after the offence is committed” also gives rise to issues of identity. “What if you got the wrong person? Frailty of identification evidence is a huge issue in the courts and is most always litigated.”
She asks hypothetically: “What if a guy streaks by your store and grabs something and you see a guy of similar description twenty minutes later and you effect an arrest, you are justified even if you could potentially have the wrong guy. But imagine being the guy who was mistakenly identified. With this new amendment, identification is a much bigger issue.”
Says Gadhia: “The police are trained to deal with these high-risk and volatile situations, involving the arrest of an individual who could potentially be armed and dangerous. Leave it to them to do this type of work. That is why our taxes pay for them. It’s just too risky to allow citizens to actively participate in the arrest of individuals. Read CBC StoryBack to News