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 warrant shall 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 intentionally to 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 in doing 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 serious injury 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.
CAUTION:
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.
CAUTION:
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.