Let's Arrest Everybody! What Could Go Wrong?

I was just checking my archives, and Jesus, did I ever write a lot about the sad, strange saga of David Chen this fall. For some background to my newer readers, or if you just love me so much that you can't help but read my musings over and over again, go here, here, here, here and here.

If you're too lazy to read through all of that, I'll recap. Mr. Chen and others detained a career criminal roughly an hour after seventy-odd dollars worth of plants were shoplifted from Chen's store on Dundas Street here in Toronto. The thief, Anthony Bennett, was chased by Chen and his boxcutter-wielding employees, tied up and thrown into a van until police arrived.

The police charged the Lucky Moose employees because the arrest was illegal under Section 494 of the Criminal Code of Canada, which governs citizens arrests. Weapons Dangerous charges related to the boxcutters were dropped before trial. On October 29, Mr. Justice Ramez Khaw acquitted Mr. Chen, in my opinion, in open defiance of the facts of the case and the law and based his judgement on conclusions that would be inapplicable in any similar circumstance. The Chen case stirred populist outrage in the city, and federal Members of Parliament - including Prime Minister Harper - were not only openly commenting on an ongoing criminal case, but proposing changes to Section 494 that would make it easier to effect a citizen's arrest.

I oppose that. I don't believe that any good can come of granting broader powers of arrest and detention to citizens who aren't trained and are largely ignorant of the law. I'm of the strong opinion that this lead to increased personal injury (including possibly avoidable deaths), civil rights violations, and a completely preventable congestion of the civil courts. The bills proposed by Toronto MPs Olivia Chow and Joe Volpe and supported by Harper are chock full of bad ideas and unintended, but easily predicted, consequences.

As it happens, people who are trained in powers of arrest under the Criminal Code not infrequently make stupid mistakes. We learned this yesterday in the case of Gentles v. Intelligarde International Incorporated, 2010 ONCA 797.

I'm familiar with Intelligarde by reputation, having worked with a number of their former employees when I was in loss prevention. I know that, at least in 2003-05, all of their new hires went through extensive training that lasted between one and two weeks. I also know that that they licenced by the province to use handcuffs and, given their contracts, aren't afraid to use them.

The sections from the judgement posted at Morton's Musings aren't particularly clear about the complete background of the case, and I can't find the complete Gentiles ruling online. Therefore, you should be warned that I'll have to assume a couple of things here and there as I comment on the case.

59] The security guards took the initiative to approach the two appellants. As the trial judge states in para. 3, "The security guards were in the courtyard and spoke to the [appellants] as they passed." It is uncontested that Gentles and Francis were merely walking towards Gentles' apartment building, a building with a locked front door. As the trial judge puts it in the passage above, the appellants were "questioned". The jury's answer to question 2 indicates that Collins and Barnes asked Gentles and Francis if they "live here". Gentles and Francis' response to being questioned was, as the trial judge put it, "a vulgar and totally uninformative refusal to answer." Collins testified that Gentles responded by saying "FU, we do not have to tell you f'ing anything."

60] Vulgarity aside, the statement that Collins attributed to Gentles is an accurate statement of the law. Gentles and Francis were not required by the TPA or any other legal principle to respond to the question whether they lived there. The Intelligarde respondents' counsel concedes, as he must, that while security guards have the right to ask questions, tenants have the right to refuse to answer them. Since that is so, the refusal of an individual not recognized by security guards to identify himself as a resident provides no reason to think that he is on the premises in contravention of s. 2 of the TPA.

62] The next circumstance is that, rather than respecting the young men's right to refuse to answer their questions, the security guards, as the trial judge put it, "pressed" them to respond. The further response they received was more vulgarity and the adoption of an aggressive stance.

[63] It is difficult to appreciate the logic that there is reason to believe an individual is likely to be a trespasser because, after initially refusing to answer questions, he maintains that position when "pressed" to answer. The tacit assumption seems to be that residents who stand on their rights and refuse to answer will eventually relent when "pressed" to do so. Such an assumption is not grounded in reason. Additional rounds of questions and refusals add nothing to the legal principle that individuals can stand on their rights and refuse to answer the questions of security guards.

[64] Nor can the escalation of vulgarity and aggressiveness attributed to Gentles and Francis contribute to the required reasonable grounds. It seems to me that the one thing the security guards did have a reasonable basis to believe, having encountered vulgarity and belligerence upon first "questioning" the appellants, was that they would encounter more vulgarity and belligerence if they persisted in pressing for answers.

[65] Gentles and Francis may have been uncooperative, vulgar and belligerent. However, the security guards required some objective basis to believe that Gentles and Francis were uncooperative, vulgar and belligerent trespassers rather than uncooperative, vulgar and belligerent residents.

I'm assuming that Gentles v. Intelligarde is an appeal of a civil lawsuit resulting from a false arrest. Mr. Morton offers no background, nor can I find any online. From the Court's citations, I'm also assuming that Messers Gentles and Francis were detained or had their freedom of movement otherwise restricted.

In any event, these are highly trained people who are schooled in their powers of arrest and are designated "persons of authority" under Ontario law. And they made some pretty basic mistakes. Luckily from them, security guards have little in the way of assets, so they weren't sued personally, and Intelligarde carries liability insurance for exactly that purpose.

That being the case, what happens when you loosen the restrictions in Section 494? Does anyone have expanded powers of arrest for summary offenses - which shoplifting (technically Theft Under $5,000) almost always is - or does Ontario's "person of authority" designation still apply? Will the Section 494 distinction between indictable and summary offenses be repealed, as they almost certainly would have to be? How do you expect the average citizen or retail employee to know the difference? How would civil liability be determined if 494 is amended?

Gentles and Francis were well within their rights as Canadian citizens and were presumably arrested by private citizens (Remember, security guards are not police officers and have no legal authority that any other citizen doesn't.) Depending on the circumstances of the case, the Intelligarde employees could have criminally charged, just as Mr. Chen was this year.

There are any number of practical and legal considerations that should be addressed before 494 is amended. However, in the populist outrage arising from the Chen matter, they haven't been and likely won't be until something goes terribly wrong.


Note: Again, please remember that this post is written under a number of assumptions that I have made because I don't have the full record of Gentles v Intelligarde in front of me. If I'm mistaken on any of the material facts of the case, I'll be more than happy to correct them and so note the corrections. Also, if anyone can find the full judgement online, I'd appreciate reading it in full.

Special thanks to Morton's Musings: Canadian Law and Policy

Update: Thanks to your friend and mine, LJB, the appellate ruling can be read here.