Legal authorities: arrest, trespass, search, evidence and the Charter

Where a guard's authority comes from

Security guards have neither police nor peace-officer powers. Their authority comes from:

1. the Criminal Code powers that any person has (arrest, self-defence, defence of property);
2. provincial trespass laws, acting as the occupier's authorized agent;
3. the property owner's rules and the guard's post orders (and the consent of people who accept conditions of entry, such as bag checks).

Ontario's syllabus gives this section the most classroom time (7.5 h) - expect many scenario questions.

Arrest without warrant - Criminal Code s.494

Who	When	Section
Anyone	Finds a person committing an indictable offence	s.494(1)(a)
Anyone	Believes on reasonable grounds a person has committed a criminal offence and is escaping from and freshly pursued by people with lawful authority to arrest	s.494(1)(b)
Owner / lawful possessor of property, or a person they authorize (e.g. a guard)	Finds a person committing a criminal offence on or in relation to that property - at the time, or within a reasonable time after, if they believe on reasonable grounds that it is not feasible for a peace officer to make the arrest	s.494(2)

After any citizen's arrest, the person must be delivered forthwith to a peace officer (s.494(3)) - not to your supervisor, and not released on your own decision.

Key fact: "Finds committing" means you saw the offence happening. Arresting someone the next day for something you suspect they did last week is generally not authorized by s.494(1)(a).

Types of offences

• Summary conviction - less serious (e.g. causing a disturbance).
• Indictable - more serious (e.g. robbery, assault causing bodily harm).
• Hybrid - the Crown chooses; treated as indictable until the Crown elects, so a citizen's arrest power for "indictable offences" covers hybrid offences such as theft under $5,000.

Doing an arrest properly

1. Be sure of the grounds - you must have seen the offence (or meet the s.494(2) test).
2. Clearly tell the person they are under arrest and why.
3. Use only reasonable, necessary force (Criminal Code s.25; see the use-of-force note).
4. Inform the person of their right to retain and instruct counsel without delay (good practice mirroring Charter s.10).
5. Call police and hand the person over forthwith; protect evidence.
6. Record everything in your notebook and write a report.