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楼主 / 回音宝宝
- 时间: 2014-4-21 17:01www.justice.gc.ca/eng/...32865.html
The Citizen's Arrest and Self Defence Act came into force on March 11, 2013. The Act made changes to the Criminal Code relating to the power of a private citizen to make an arrest after they find a person committing a criminal offence on or in relation to property.
CITIZEN'S ARREST
Citizen's Arrest Related to Property Crimes
Before the Act came into force, a citizen's arrest could only be made when a person was found in the act of committing a criminal offence. Now, for crimes committed on or in relation to one's property, a citizen's arrest can be made within a reasonable period of time after a person is found committing a criminal offence. This power of arrest is only authorized when there are reasonable grounds to believe that it is not feasible in the circumstances for the arrest to be made by a police officer.
The law requires that when a citizen's arrest is made, the arrested individual must be delivered to a police officer without delay. If a person making a citizen's arrest does not call the police as soon as possible, the arrest might be ruled illegal, and there could be civil or criminal consequences for the person making the arrest.
Reasonable Use of Force
The use of force is authorized in a citizen's arrest, but there are limits placed on how much force can be used. In essence, the laws permit the reasonable use of force, taking into account all the circumstances of the particular case. A person is not entitled to use excessive force in a citizen's arrest.
Important Considerations
A citizen's arrest is a very serious and potentially dangerous undertaking. Unlike a police officer, a private citizen is neither tasked with the duty to preserve and maintain public peace, nor properly trained to apprehend suspected criminals. In most cases, an arrest consists of either actually seizing or touching a person's body in an effort to detain them. Whenever possible, a person should report wrongdoing to the police instead of taking action on their own.
More information on making a citizen's arrest is available here: What You Need to Know about Making a Citizen's Arrest
SELF-DEFENCE
The self-defence provision of the Criminal Code permits a person to take reasonable action to protect themselves or others without being guilty of an offence.
Under the new law, a person is not guilty of an offence provided that they have a reasonable belief that either they or another person is being threatened with force and that the actions taken are for the purpose of defending against that force. The actions, which can include the use of force, must also be considered reasonable under the circumstances.
In deciding whether the action is reasonable, the court takes into consideration the relevant circumstances of the situation. The law includes a non-exhaustive list of factors that help courts to determine whether the accused person's actions were reasonable in the circumstances. These factors are not the only ones that courts consider when determining whether actions taken were reasonable, but are ones that have been previously well-established as being relevant to a self-defence claim.
Some examples of the factors listed in the law include the nature of the threat, how the person responded and whether it was proportionate to the threat or attack, how imminent the threat was and whether there were other ways in which the person might have been able to respond, whether there was a weapon involved, the size, age, gender and physical capabilities of the people involved, and the relationship between the people involved, including if there were previous threats of force.
In the case of self-defence claims against police actions such as an arrest, self-defence only applies if the person claiming it had reasonable grounds to believe that the law enforcement officer was acting unlawfully.
DEFENCE OF PROPERTY
The new defence-of-property provision permits a person in peaceable possession of property, or a person assisting someone they believe to be in peaceable possession of property, to commit a reasonable act (including the use of force) for the purpose of protecting that property from being taken, damaged or trespassed upon.
The concept of "peaceable possession" has been interpreted by the courts to mean possession that is not likely to lead to a breach of the peace. It limits the defence to circumstances where it is appropriate. For instance, it prevents someone not in peaceable possession, such as a thief in possession of stolen property, from using the defence if they resist efforts of others to retake property. It also prevents the defence from being used by a property owner who commits an offence in order to recover or retake property that is not in their possession. For instance, a person whose car was towed cannot use the defence against a charge that they broke into the lot to retrieve their car. Rather, a person who is not actually in possession of property they have a claim to must resort to the civil law, or seek assistance from other authorities such as the police, to resolve a conflict over their entitlement to the property. A person must not resort to the commission of a crime in such non-urgent situations.
As with self-defence, a claim of defence of property against police action, such as the execution of a search warrant and the seizure of evidence from a person's house, is only available where the property possessor believes that the police are acting unlawfully.
Use of Deadly Force
The use of deadly force is only reasonable in very exceptional circumstances – for example, where it is necessary to protect a person from death or grievous bodily harm. The courts have clearly stated that deadly force is not considered reasonable in defence of property alone.
A technical guide on the new laws of self-defence and defence of property is available at: Technical Guide to Self Defence and Defence of Property Reforms -
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- 时间: 2014-4-21 17:01laws-lois.justice.gc.c...lText.html
Citizen’s Arrest and Self-defence Act
S.C. 2012, c. 9
Assented to 2012-06-28
An Act to amend the Criminal Code (citizen’s arrest and the defences of property and persons)
SUMMARY
This enactment amends the Criminal Code to enable a person who owns or has lawful possession of property, or persons authorized by them, to arrest within a reasonable time a person whom they find committing a criminal offence on or in relation to that property. It also amends the Criminal Code to simplify the provisions relating to the defences of property and persons.
Her Majesty, by and with the advice and consent of the Senate and House of Commons of Canada, enacts as follows:
SHORT TITLE
Marginal note:Short title
1. This Act may be cited as the Citizen’s Arrest and Self-defence Act.
R.S., c. C-46
CRIMINAL CODE
Marginal note:1992, c. 1, s. 60 (Sch. I, s. 20)(F)
2. Sections 34 to 42 of the Criminal Code are replaced by the following:
Marginal note
efence — use or threat of force
34. (1) A person is not guilty of an offence if
(a) they believe on reasonable grounds that force is being used against them or another person or that a threat of force is being made against them or another person;
(b) the act that constitutes the offence is committed for the purpose of defending or protecting themselves or the other person from that use or threat of force; and
(c) the act committed is reasonable in the circumstances.
Marginal note:Factors
(2) In determining whether the act committed is reasonable in the circumstances, the court shall consider the relevant circumstances of the person, the other parties and the act, including, but not limited to, the following factors:
(a) the nature of the force or threat;
(b) the extent to which the use of force was imminent and whether there were other means available to respond to the potential use of force;
(c) the person’s role in the incident;
(d) whether any party to the incident used or threatened to use a weapon;
(e) the size, age, gender and physical capabilities of the parties to the incident;
(f) the nature, duration and history of any relationship between the parties to the incident, including any prior use or threat of force and the nature of that force or threat;
(f.1) any history of interaction or communication between the parties to the incident;
(g) the nature and proportionality of the person’s response to the use or threat of force; and
(h) whether the act committed was in response to a use or threat of force that the person knew was lawful.
Marginal note:No defence
(3) Subsection (1) does not apply if the force is used or threatened by another person for the purpose of doing something that they are required or authorized by law to do in the administration or enforcement of the law, unless the person who commits the act that constitutes the offence believes on reasonable grounds that the other person is acting unlawfully.
Defence of Property
Marginal noteefence —property
35. (1) A person is not guilty of an offence if
(a) they either believe on reasonable grounds that they are in peaceable possession of property or are acting under the authority of, or lawfully assisting, a person whom they believe on reasonable grounds is in peaceable possession of property;
(b) they believe on reasonable grounds that another person
(i) is about to enter, is entering or has entered the property without being entitled by law to do so,
(ii) is about to take the property, is doing so or has just done so, or
(iii) is about to damage or destroy the property, or make it inoperative, or is doing so;
(c) the act that constitutes the offence is committed for the purpose of
(i) preventing the other person from entering the property, or removing that person from the property, or
(ii) preventing the other person from taking, damaging or destroying the property or from making it inoperative, or retaking the property from that person; and
(d) the act committed is reasonable in the circumstances.
Marginal note:No defence
(2) Subsection (1) does not apply if the person who believes on reasonable grounds that they are, or who is believed on reasonable grounds to be, in peaceable possession of the property does not have a claim of right to it and the other person is entitled to its possession by law.
Marginal note:No defence
(3) Subsection (1) does not apply if the other person is doing something that they are required or authorized by law to do in the administration or enforcement of the law, unless the person who commits the act that constitutes the offence believes on reasonable grounds that the other person is acting unlawfully.
3. (1) Subsection 494(2) of the Act is replaced by the following:
Marginal note:Arrest by owner, etc., of property
(2) The owner or a person in lawful possession of property, or a person authorized by the owner or by a person in lawful possession of property, may arrest a person without a warrant if they find them committing a criminal offence on or in relation to that property and
(a) they make the arrest at that time; or
(b) they make the arrest 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.
(2) Section 494 of the Act is amended by adding the following after subsection (3):
Marginal note:For greater certainty
(4) For greater certainty, a person who is authorized to make an arrest under this section is a person who is authorized by law to do so for the purposes of section 25.
COMING INTO FORCE -
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- 时间: 2014-4-21 17:05
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- 时间: 2014-4-21 17:06“公民逮捕权”修订后法案生效后，联邦司法部也于11日同日发出“使用需知”，提醒市民运用逮捕权的前提和运用后可能出现的潜在后果，并建议由于行动涉及很多复杂因素，如果不小心可能会违法，导致抓人者被民事或刑事诉讼，所以遇到犯罪案件最好是报警。
司法部称，市民在实行“公民逮捕权”时，需要参考“公民拘捕法”（Citizen's Arrest Laws）并考虑到以下几点：按照当时状况，警察介入是否可行？如果是，那么应该立即通知警察，而非采取个人行动来阻止；如果采取公民逮捕权的话，身边的人是否会因此受伤？而且嫌犯，如小偷，是否只是一个人？他的身上会不会有武器，会伤到人？当你逮捕小偷后，是否可以作到在第一时间内将其送往警局？ 你是否对小偷的盗窃行为有足够的证据？
市民如果决定行使公民逮捕权，那么需要遵照以下做法：明确的告诉小偷，你正在执行公民逮捕权，并且会将他/她一直扣留，直到警察出现；致电警局；要求小偷配合，直到警察赶到；避免使用武力，但如有必要，则尽量将武力降到最低；逮捕小偷后，不要对他/她搜索或质问，因为你的职责只是将他扣留到直至警察赶到；待警察赶到后，告诉警察事情的详细经过。
修改后的法案授权物业所有人、合法拥有物业的个人，或经过物业所有人或个人授权的人，在合理范围的时间内，发现有人违反刑法闯入物业内或偷取与物业有关的财产时，可径行逮捕之。尽管在逮捕过程中可以适当运用武力，但是如果过度使用，当事人也可面临相关控告。
加拿大限制人身自由的迷思, 如果你怀疑有人犯法, 可否作出拘捕?
