Canada expands citizen’s arrest powers for private security personnel

OTTAWA—A soon-to-be-enacted law in Canada will expand the ability for a person to perform a citizen's arrest, a change that will have a major impact on private security personnel in the country, according to two security experts who spoke with Security Director News.

Canada's current criminal code allows a property owner or their employee, such as a security guard or a retail loss prevention officer, to arrest someone if they're caught red-handed committing a criminal offense. However, the new Bill C-26 amendment, known as The Citizen's Arrest and Self-defence Act, modifies the criminal code to allow a citizen's arrest to be performed “within a reasonable time after the offence is committed and they believe on reasonable grounds that it is not feasible in the circumstances for a peace officer to make the arrest."

It's a small addition, but its implications can be massive. It means that, in theory, a security guard or a loss prevention officer could observe a person shoplifting on a Monday morning, but for whatever reason not arrest them until later that afternoon, or the next day, or even on Friday, David Hyde, a security consultant with 25 years of experience, told SDN. In fact, that loss prevention officer could technically arrest the suspected shoplifter two days later on a city street or on the bus, creating a potentially dangerous situation. The phrase "within a reasonable time" is vague and only case law will determine over time what it means in practice, Hyde said.  

Given that private security officers conduct 99 percent of citizen arrests, the changes in the law will have a major impact on any security manager in Canada or those that manage security for an organization with locations in Canada.

Retail will likely be the most affected sector, Hyde said, but security personnel at hospitals, universities, bars and nightclubs, sport stadiums and special events also make citizen arrests. And, given the budgetary constraints of law enforcement and the fact that there are currently two private security personnel for every one law-enforcement officer in Canada, he expects the number of citizen arrests to increase. (There are 140,000 licensed security personnel in Canada, according to Hyde, compared to 69,438 police officers.)

The change in the law is controversial. The Canadian Bar Association claims the change will "encourage unjustified arrests by private security personnel, not subject to public oversight," according to its written comment on the bill. "Such personnel often lack the necessary range of equipment or adequate training to safely and lawfully make arrests in a manner proportionate to the circumstances, in the regular course of their duties."

Hyde believes the new law puts pressure on security directors to properly adapt their operations and training. He suggests security directors perform comprehensive risk assessments, and adapt or modify any policies, procedures and training that cover how front-line security staff make a citizen's arrest.

"The reality is the vast majority of private security in Canada—it's unfortunate to say, but it's the truth—are not all that well trained, are not all that well screened, are not all that well directed or guided, and in the absence of appropriate guidance, policy direction and training, they will interpret this law in the way they see fit and they'll put themselves in harm's way," Hyde told SDN, adding that citizen arrests are already inherently risky because those being arrested are more likely to resist an unarmed security officer than a law enforcement officer. "I don't want to see these guys put themselves in harm's way. That's the overwhelming concern for me."

However, Ross McLeod, president of the Association of Professional Security Agencies, told SDN that the change in the law is long overdue and it could be argued that it will prevent more potentially dangerous situations than it creates. For example, a loss prevention officer no longer has to make a move if he witnesses a group of four or five guys shoplifting. He can now wait until he has backup the next day, McLeod said.  

McLeod is also president of Intelligarde, which employs about 700 security officers in Ottawa, Toronto, Hamilton and Winnipeg. When he started the company 30 years ago, a private security officer making a citizen's arrest was unheard of. "Nobody made arrests except police," he said.

But McLeod knew the law and began encouraging his employees to make a citizen's arrest when appropriate. In those early days, his security officers ended up in jail as often as those they apprehended, McLeod said. "I spent about two years going from station to station in Toronto and other locations giving short presentations to the police officers" on the legality of private security officers making a citizen's arrest. "It revolutionized private security."

With the new law coming, McLeod said he would modify all policies and procedures governing when his employees should pursue a citizen's arrest, but he also believes it likely won't make a big splash. "A lot of the initial talk was, 'Oh, you can't give too many powers to non-police, they might run amok, you might encourage vigilantism.' I was at pains to point out that there's no history or reality of vigilantism in this country," he said. "The changes are going to go unremarked by almost everybody except for professional security personnel."

In the future, McLeod believes the powers of private security will continue to be expanded, especially given the budgetary restraints of public law enforcement departments.

The bill owes its existence to an highly-publicized incident in 2009 that involved David Chen, a shop owner in Toronto's Chinatown, who witnessed a person shoplifting on his CCTV camera and chased him down later that day and placed him under citizen's arrest, only to be arrested himself when the police arrived. Chen was eventually acquitted, but it created a national conversation about citizen arrest laws.

Another interesting aspect to the new law is its impact on the use of security technology, Hyde said. The current law was written before CCTV was used for security, according to Hyde, so it's wording didn't clarify whether the criminal offense could be viewed in person or over CCTV. But since the Chen case is the genesis of this new law, Hyde said it's now implied that viewing the crime via CCTV footage is legitimate.

But there are still plenty of questions that only future case law will be able to provide answers to. For example, can a loss prevention officer make a citizen's arrest after viewing a theft on a pre-recorded tape or only after viewing the crime via a live CCTV feed? "That's an excellent question," Hyde said.

The bill has cleared all hurdles and has received Royal Assent. The last formality is an "Order in Council," which could come at any time and is expected quite soon, Hyde said.