Monday, February 13, 2012

Stranger than Fiction: Warning Shots in Defence of Property

Criminal law isn't my primary expertise, but I still pay attention to the developments in it - it sometimes impacts the rights and responsibilities of employers.

So I've just read Bill C-26, after seeing a CBC story noting that Rob Nicholson argued that the bill justifies the firing of warning shots in response to property crimes.

Citizen's Arrest Amendments

Bill C-26 tracks back to a high-profile case in 2009 relating to a store owner, David Chen, who was charged after detaining a shoplifter who had earlier stolen an object then returned to strike again.  He was eventually acquitted, but there was a concern that the existing citizen's arrest laws, essentially requiring that the arrest be made at the time of the offence, were too restrictive.

Personally, I think there's an elegant simplicity to the existing law on the point:  In order to justify a citizen's arrest, you need to see the person commit a certain type of crime in specific circumstances, and make the arrest immediately.  These requirements ensure a very high level of confidence in both the criminality of the act alleged and the identity of the person alleged to have committed it, before you start justifying private citizens in instigating potentially-violent confrontations with others.  When you break that immediacy, you end up potentially legitimizing a broader range of vigilante activities, increasing the risk of mistaken identity, violent misunderstandings, etc.

I also tend to think that David Chen's acquittal is evidence of the sufficiency of the existing laws.  Changing a law because someone who we don't think did anything wrong was charged but acquitted...seems like bad policy to me.

But now we're changing it so that an arrest can be effected "within a reasonable time", where no police officer is available.  This concerns me somewhat.

If I am a store owner, and somebody steals something and I catch them on the spot and detain them, then the police will come and I can hand them over.  As I said, a high level of confidence.  On the other hand, if somebody steals something and gets away from me, and I call the police, the police will likely just take a report.  (I read another editorial in the Globe recently complaining that the police never actually attended to investigate a series of break-ins that the author experienced.  They're 'too busy' attending to life-threatening situations and traffic tickets to investigate low-value property crimes.)  Thus, the unavailability of police will probably be routinely met for these cases.  So in a case where the offender comes back (or somebody I think is the offender - as I noted, a lower level of confidence), I can then detain them, if it's within a 'reasonable time', whatever that means.  But the language goes beyond that, because it doesn't require the offender to return:

I can go out looking for the thief.

That's right, I can get a good old-fashioned posse together to hunt down the shoplifter, provided only that the police aren't immediately available and it's within a reasonable period of time.  I find somebody who I reasonably believe is the thief, and I can forcefully detain the person.

But the Bill goes further than just changing the doctrine of citizen's arrest.  It also changes the doctrine of self-defence, quite significantly.


The existing language that gets replaced is actually pretty arcane and probably needs amendment, but it specifies certain actions which are justified under certain situations.  If you're being assaulted, you're justified in using necessary reasonable force to repel it, short of force intended to cause death or grievous bodily harm, unless you reasonably apprehend that you are at risk of death or grievous bodily harm and don't have any other avenue of preserving yourself.

Defence of property has a long list of provisions describing what you're entitled to do in certain circumstances.  For example, if you're in "peaceable possession of a dwelling-house" and somebody tries to break in, you're entitled to use reasonable force to keep the person out.  In general, this is the key:  These provisions create a positive entitlement to use reasonable force under certain circumstances.  And specific language limiting the types of force available in certain circumstances.

The amendments are drastic.

First of all, rather than creating limited positive entitlements, the new language creates a sweeping defence for any "act" at all which would otherwise be an offence, which is reasonable under the circumstances, and which is used to protect oneself from a reasonably perceived threat.  Pretty general language.

As for defence to property...again, rather than pigeonhole exemptions regarding use of force in specific situations, the draft language uses the same sweeping defence language for any "act" which is reasonable for preventing or stopping a trespass or theft, where you reasonably believe you're in peaceable possession of the property and where you reasonably believe that a person is about to, is currently, or has just committed a trespass or theft.  (Note all the "reasonably believe" qualifiers.)

What's "reasonable" in the circumstances will, no doubt, be the subject of significant litigation if this Bill passes.  Warning shots are just the tip of the iceberg.  In my view, a warning shot is inherently reckless and irresponsible.  Stray bullets create a hazard to the public, and a warning shot, by definition, is a stray bullet.  I hope and expect that the Courts will take a relatively conservative view of what is "reasonable".  Shooting people engaged in minor property offences will probably be seen as unreasonable.  The 'reasonableness' catch-all is, perhaps, a saving grace for the Bill by preventing people from taking defence of property to anarchist levels, but it also hurts the predictability of the law.  It's going to have to be tested - there will have to be cases where somebody has gone marginally too far under the circumstances, not knowing that they were crossing the line.

Oh, here's another big change.  Existing self-defence provisions include the language "unlawfully assaulted" - meaning that if someone is lawfully arresting you, you don't get the benefit of it.  Defence of property provisions use the term 'trespasser', which means that, for example, you can't use them to justify force against a police officer executing a search warrant.  The language of Bill C-26 creates an exception for such circumstances, but there's an exception to the exception:  Where you believe on reasonable grounds that the person is acting unlawfully, you're still justified in using force.

It's always been true that, if you're *right* that the person is acting unlawfully, the self-defence doctrine applies.  But a person should be loathe to rely on that without significant confidence in their conclusion:  If the police are trying to arrest me, and I think that they lack reasonable and probable grounds to do so, and I resists...well, if I'm right, then I'm justified.  If I'm wrong, then I'm guilty of another offence.  With the proposed amendments, it will be a defence to a charge of assaulting a police officer and resisting lawful arrest that a person 'reasonably believed' that the police officer lacked reasonable and probable grounds to make the arrest.

This goes deeper if you combine it with the new citizen's arrest doctrine:  Imagine that I find somebody whom I reasonably believe just stole something from me.  I detain this person, using necessary force to do so.  I am justified in doing this.  However, suppose that this person reasonably believes that I am acting unlawfully (perhaps I'm wrong, and the person is innocent).  This person will then be justified in any reasonable act to defend himself from my lawful arrest.  In other words, it could easily escalate to deadly proportions, and neither one of us will have committed any offence.


This blog is not intended to and does not provide legal advice to any person in respect of any particular legal issue, and does not create a solicitor-client relationship with any readers, but rather provides general legal information. If you have a legal issue or possible legal issue, contact a lawyer.

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