COURT OF APPEAL FOR ONTARIO

DATE: 20011001 DOCKET: C24828/C25026

GOUDGE, MACPHERSON and SHARPE JJ.A.

B E T W E E N :

HER MAJESTY THE QUEEN

Scott C. Hutchison for Her Majesty The Queen

Appellant (C25026) Respondent (C24828)

• and -

DANIEL ASANTE-MENSAH

Michael W. Lacy for Daniel Asante-Mensah

Respondent (C25026) Appellant (C24828)

Heard: June 6, 2001

On appeal from the conviction of Justice S. Casey Hill dated May 8, 1996.

MACPHERSON AND SHARPE JJ.A.:

[1] These appeals concern two important issues arising from the Trespass to Property Act, R.S.O. 1990, c. T.21 ("TPA"). The accused is a taxi driver who persistently flouted an airport regulation prohibiting the picking up of passengers by those who do not hold a permit to do so. As a last resort, the airport authorities served him with a notice under the TPA prohibiting him from entering upon the property of Pearson International Airport. The accused appeals from the finding of the trial judge that this notice and the manner of its enforcement against him infringed his rights protected by ss. 7 and 9 of the Canadian Charter of Rights and Freedoms.

[2] When the accused failed to comply with the TPA notice, he was arrested by an airport inspector. A scuffle ensued and the accused was charged with assault with intent to resist arrest. The accused argued successfully at trial that the inspector, acting as a private citizen, had no lawful authority to use force in effecting the arrest and that he was justified in defending himself from the force the inspector used. The Crown appeals from this finding.

Facts

[3] A federal licensing scheme, the Government Airport Concession Operations Regulations, S.O.R./79-373, limits the right to pick up taxi passengers at Pearson International Airport. Permits are issued to a dedicated licensed fleet of vehicles. Taxi drivers without a permit are prohibited from picking up passengers at the airport.

[4] The accused is an independent taxi driver who does not have the permit required to pick up passengers. The accused strongly disagrees with the permit system. For many years, he and a core group of about 65 unlicensed drivers displayed open contempt for the scheme. They refused to comply with the permit system and regularly showed up at the airport to solicit (or “scoop”) customers illegally.

[5] The airport authorities had difficulty enforcing the regulations. The penalties imposed under the scheme were modest and the inherently transient nature of airport passengers who might be required as witnesses made prosecution difficult. Eventually, in consultation with the federal Department of Justice and the police, the airport authorities attempted to remedy these enforcement difficulties by issuing notices to the accused and several other "scoopers" under s. 3 of the TPA. These notices prohibited parties named and served from entering on airport property.

[6] The accused was served with his notice under the TPA on June 4, 1990. Between August 23,1990 and July 10, 1991, he was charged with trespassing in violation of the notice on 22 separate occasions. At trial in this proceeding, he made clear his defiance of the permit system.

[7] On July 22, 1991, two airport ground transportation inspectors observed the accused’s vehicle parked unattended at the curb of the arrivals level. Both inspectors had prior regulation enforcement experience with the accused. While the duties of these inspectors include the enforcement of airport regulations, they are not peace officers and, when carrying out enforcement duties, their legal powers are those of the ordinary citizen. One of the inspectors approached the accused, touched him on the shoulder and informed him that he was under arrest for trespassing. The accused moved quickly past the inspector and fled the scene in his car. As a result of this transaction, the accused was charged with escaping lawful custody.

[8] On July 25, 1991, two inspectors again saw the accused’s unattended vehicle parked at the curb in a prohibited parking area along with another scooper’s vehicle. The accused and the other scooper subsequently emerged from inside the airport terminal. One inspector approached the accused, touched his shoulder, and informed him that he was under arrest for trespassing and that he would be detained for police arrival. The accused attempted to enter his vehicle to flee the scene and avoid further consequences of his arrest. The inspector tried to prevent the accused from re-entering his vehicle. The inspector's position impeded the accused from opening his car door and entering the vehicle. A physical altercation ensued. The inspector attempted to prevent the accused from entering the vehicle and the accused effectively employed his car door to strike the inspector. Eventually, the accused managed to close the door of his vehicle and he drove off.

[9] This incident led to charges being laid against the accused for assault of the inspector with intent to resist arrest and escaping lawful custody. The accused laid an assault charge against the inspector one week after the incident, but the Crown later withdrew the charge.

[10] A further incident occurred at the airport on July 25, 1991 that resulted in the accused being charged with counts of dangerous driving, use of a weapon in committing an assault, and escaping lawful custody. These charges are not the subject of this appeal.

Trial Proceedings

[11] At trial before a Superior Court judge sitting without a jury, the accused brought Charter challenges against the provisions of the TPA providing for exclusionary notices and the power of arrest, alleging infringement of his ss. 7 and 9 rights.

[12] In his thorough and thoughtful reasons, the trial judge dismissed the Charter challenges and convicted the accused on the charges of escaping lawful custody for both the July 22 and July 25 incidents.

[13] On the s. 7 issue, the trial judge held that the exclusionary notice did not infringe the accused’s liberty. He noted that the accused’s admitted purpose in going to the airport was to seek and solicit fares. Relying on several decisions of the Supreme Court of Canada and of this court, especially Irwin Toy Ltd. v. A.G. Quebec, 1989 87 (SCC), [1989] 1 S.C.R. 927, he concluded that this reason for seeking access to the airport was not sufficient because “I have difficulty accepting that s. 7 of the Charter is sufficiently all-inclusive to include a liberty interest extended to an unlimited right to pursue commercial activity in any public space.”

[14] The trial judge further held that the exclusionary notice comported with the principles of fundamental justice component of s. 7 of the Charter. He did not think that the absolute exclusion authorized by s. 3(1) of the TPA was overbroad; nor did he think that it was inappropriate in this case:

In light of the accused’s evasiveness and contempt for regulation by the occupier, no lesser intrusion than absolute refusal of admittance could reasonably be viewed as proportionate to the problem faced.

[15] With respect to the Charter s. 9 issue, the trial judge held that an arrest without warrant of a trespasser on airport premises, authorized by s. 9 of the TPA, was not arbitrary. Section 9 of the TPA contained appropriate criteria for an arrest, and the actual arrest of the accused was “reasonable in the public interest in order to prevent the continuation or repetition of the offence.”

[16] The trial judge dismissed the charge of assault with intent to resist arrest arising from the July 22 incident on the ground that while the arrest itself was lawful, the inspector, who was acting as a private citizen, had no right to use force to effect the arrest. It followed, held the trial judge, that the inspector's use of force after the arrest was effected was unlawful and the accused was entitled to resist that unlawful use of force.

[17] The trial judge noted that s. 9 of the TPA did not explicitly confer the right to use force. He noted as well that s. 146 of the Provincial Offences Act, R.S.O. 1990, c. P-33, deals with the use of force by the police in the execution of their lawful duties and by private citizens called to aid the police, but makes no provision for the use of force in a citizen's arrest. By way of comparison, the trial judge cited several other provincial statutes that also deal expressly with the use of force in carrying out statutory powers. He concluded from his review of the legislative framework that the inspector lacked lawful authority to use reasonable force when arresting the accused:

Where legislation specifically addresses the scope of a person's authority, recognition of the operation of a parallel and broader common law authority or privilege is generally to be avoided: Silveira v. The Queen (1995), 1995 89 (SCC), 97 C.C.C. (3d) 450 (S.C.C.) at 464-5, 466-7 per Cory J.; Regina v. Noble (1985), 1984 2156 (ON CA), 16 C.C.C. (3d) 146 (Ont. C.A.) at 172 per Martin J.A. When it has seen fit to do so, the provincial legislature has had little difficulty in expressly conferring an authority to employ reasonable force: see for example, Child and Family Services Act, R.S.O. 1990, c. C-11, s. 44(2) (police officer or child protection worker); Children's Law Reform Act, R.S.O. 1990, c. C-12, s. 36(5) (police officer); Environmental Protection Act, R.S.O. 1990, c. E.19, s. 163 (a provincial officer); and, Game and Fish Act, R.S.O. 1990, c. G-1, s. 8(3) (conservation officer).

[18] The trial judge found that the important public policy of minimizing the risk of violence favoured limiting the powers of private citizens carrying out arrests:

I do not accept that there is no public policy or societal interest in denying the use of force to a citizen performing an arrest simply because the statute, in any event, permits the intrusive action of a deprivation of liberty through conferral of a power of arrest. Inherent in the employ of physical force, to arrest and to promote restraint of a suspected offender, is the risk of an escalation of violence and the prospect of injury. There is no public interest in having persons, other than peace officers who are trained in the limits and safe avenues of use of force, engaging in the use of physical force against the person.

[19] The trial judge considered and rejected the argument that the use of force was inherent in the power of arrest in the following terms:

While it may be argued that it is inherent in the act of any arrest that force will be employed, such is not always the case. An arrest, as discussed, may be effected by a touching or by an individual yielding to the control of an arresting party in circumstances of clear words of arrest and the reason therefor. Therefore, it cannot be said that the statutory conferral of a power to arrest is rendered nugatory without affording a right to employ reasonable physical force. Where the trespasser does not yield to an arrest effected by words of arrest and touching or to words of arrest alone, the concerned occupier can alert the police to attend to arrest, follow the trespasser and request police assistance, or report the occurrence to the police where identity of trespasser or vehicle is known. Of course, the trespasser, who flees the citizen's arrest effected by words of arrest and touching, faces the prospect of an arrest and conviction for escape of lawful custody.

Issues

[20] The accused appeals from his two convictions of escaping lawful custody, submitting that the trial judge erred in law by failing to hold that notice under the TPA violated his Charter rights. The Crown appeals the acquittal of assault with intent to resist arrest, submitting that the trial judge erred in holding that a private citizen executing the power of arrest under the TPA, or detaining a person so arrested, has no lawful right to employ reasonable force.

[21] The following issues arise on these appeals:

(1) Did the trial judge err in concluding that the trespass notice under the TPA did not violate the accused’s Charter s. 7 rights?

(2) Did the trial judge err in concluding that s. 9 of the TPA, and the arrest of the accused under this provision, did not violate s. 9 of the Charter?

(3) Did the trial judge err in concluding that the inspector did not have legal authority to use reasonable force upon arresting the accused?

Legislation

Canadian Charter of Rights and Freedoms

s. 7 Everyone has the right to life, liberty and security of the person and the right not to be deprived thereof except in accordance with the principles of fundamental justice.

s.9 Everyone has the right not to be arbitrarily detained or imprisoned.

Trespass to Property Act, R.S.O. 1990, c. T.21

Trespass an offence

2. (1) Every person who is not acting under a right or authority conferred by law and who,

(a) without the express permission of the occupier, the proof of which rests on the defendant,

(i) enters on premises when entry is prohibited under this Act, or

(ii) engages in an activity on premises when the activity is prohibited under this Act; or

(b) does not leave the premises immediately after he or she is directed to do so by the occupier of the premises or a person authorized by the occupier,

is guilty of an offence and on conviction is liable to a fine of not more than $2,000.

Prohibition of entry

3. (1) Entry on premises may be prohibited by notice to that effect and entry is prohibited without any notice on premises,

(a) that is a garden, field or other land that is under cultivation, including a lawn, orchard, vineyard and premises on which trees have been planted and have not attained an average height of more than two metres and woodlots on land used primarily for agricultural purposes; or

(b) that is enclosed in a manner that indicates the occupier's intention to keep persons off the premises or to keep animals on the premises.

Implied permission to use approach to door

(2) There is a presumption that access for lawful purposes to the door of a building on premises by a means apparently provided and used for the purpose of access is not prohibited.

Limited permission

4. (1) Where notice is given that one or more particular activities are permitted, all other activities and entry for the purpose are prohibited and any additional notice that entry is prohibited or a particular activity is prohibited on the same premises shall be construed to be for greater certainty only.

Limited prohibition

(2) Where entry on premises is not prohibited under section 3 or by notice that one or more particular activities are permitted under subsection (1), and notice is given that a particular activity is prohibited, that activity and entry for the purpose is prohibited and all other activities and entry for the purpose are not prohibited.

Arrest without warrant on premises

9. (1) A police officer, or the occupier of premises, or a person authorized by the occupier may arrest without warrant any person he or she believes on reasonable and probable grounds to be on the premises in contravention of section 2.

Delivery to police officer

(2) Where the person who makes an arrest under subsection (1) is not a police officer, he or she shall promptly call for the assistance of a police officer and give the person arrested into the custody of the police officer.

Deemed arrest

(4) A police officer to whom the custody of a person is given under subsection (2) shall be deemed to have arrested the person for the purposes of the provisions of the Provincial Offences Act applying to his or her release or continued detention and bail.

Government Airport Concession Operations Regulation, S.O.R./79-373, as amended by S.O.R./95-228

8. (1) Subject to section 10, any person may transport a passenger

(a) in a commercial passenger vehicle or a courtesy vehicle from any place outside an airport to a place at the airport where the transportation does not contravene any provincial law relating to trespassing; …

Provincial Offences Act, R.S.O. 1990, c. P.33

Use of force

146 (1) Every police officer is, if he or she acts on reasonable and probable grounds, justified in using as much force as is necessary to do what the officer is required or authorized by law to do.

Use of force by citizen

(2) Every person upon whom a police officer calls for assistance is justified in using as much force as he or she believes on reasonable and probable grounds is necessary to render such assistance.

Immunity from civil liability

147. Where a person is wrongfully arrested, whether with or without a warrant, no action for damages shall be brought,

(a) against the police officer making the arrest if he or she believed in good faith and on reasonable and probable grounds that the person arrested was the person named in the warrant or was subject to arrest without warrant under the authority of an Act;

(b) against any person called upon to assist the police officer if such person believed that the police officer had the right to effect the arrest; or

(c) against any person required to detain the prisoner in custody if such person believed the arrest was lawfully made.

Criminal Code, R.S.C. 1985, c. C-46.

Protection of persons acting under authority

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,

(b) as a peace officer or public officer,

(c) in aid of a peace officer or public officer, or

(d) by virtue of his office,

is, if he acts on reasonable grounds, justified in doing what he is required or authorized to do and in using as much force as is necessary for that purpose.

Analysis

Issue 1 Did the trial judge err in concluding that the trespass notice under the TPA did not violate the accused’s Charter s. 7 rights?

[22] The accused contends that the trespass notice he received under the TPA violates s. 7 of the Charter.

[23] The trial judge did not accept this submission. He held that the accused’s asserted interest of seeking passengers at the airport was commercial in nature and therefore not a liberty interest protected by s. 7. In the alternative, he held that if the accused’s liberty was implicated by the trespass notice, the deprivation of his liberty was in accordance with the principles of fundamental justice.

[24] In our view, the appeal can be disposed of on the basis of the trial judge’s alternative line of reasoning. Without commenting on the difficult question of the relationship between liberty in s. 7 of the Charter and commercial activity engaged in by an individual, we agree with the trial judge’s conclusion that even if the trespass notice did implicate the accused’s liberty interest, it did so in accordance with the principles of fundamental justice.

[25] The accused’s principal submission on this issue is that the trespass notice suffers from ‘overbreadth’ because of several factors: the notice is permanent; it is not sensitive to legitimate public use of the airport; it is not tailored to the problem of scoopers in relation to which it was employed; and a more limited notice was available under s. 4 of the TPA.

[26] We do not agree with these submissions. It is true that the notice the accused received in July 1991 amounted to an unqualified prohibition from “entering upon the premises” of the airport. However, this prohibition needs to be assessed in context. By July 1991, the accused had been charged with trespassing on 22 different occasions. Moreover, the accused testified that he knew at all times that his conduct was contrary to the law. He also indicated that he had no intention of altering his conduct; as the trial judge put it: “When asked how he could be stopped, the accused testified that he did not know – perhaps the airport could be ‘opened up’ giving all drivers an opportunity.” In these circumstances, it is difficult to see any validity to the argument that a less restrictive prohibition should have been directed at the accused.

[27] In view of the accused’s history of disregard for the regulation and his stated intention to persist in disobedience, we do not accept the argument that a permanent prohibition went beyond what was necessary to control him. Moreover, the airport manager had lifted the trespass notices directed at four other taxi drivers when they provided an undertaking to abide by the rules and regulations of the airport. There is no suggestion in the record that if the accused stopped thumbing his nose at the law he would not be treated in a similar fashion.

[28] In our view, the notice was not defective on the ground that it was not sufficiently sensitive to the accused's right to make legitimate use of the airport. On the evidence, the accused only attends at the airport for the purpose of “scooping”. Before he received the prohibition notice he had been charged with trespassing on 22 occasions. After he received the notice, but before the trial, the accused continued to trespass at the airport. As expressed by the trial judge:

As of the time of trial, the accused continued to play a cat-and-mouse game with the airport inspectors as he continued to frequent the airport property for commercial purposes. On some days, the accused would have ten paying trips.

[29] There are, of course, other uses that the accused could theoretically make of the airport. He could go there for a flight himself, or to meet arriving family members or friends, or to shop in the airport stores. The point, however, is that the accused does not appear to engage in these activities. Each time he has been charged with trespassing it has been in the context of his blatantly unlawful commercial activity. In short, on the record before the trial judge, the only reason the accused attends at the airport is to carry out his activities as a scooper. The termination notice directed at him is, therefore, sufficiently tailored to the scooper problem which the appellant presents to be in accordance with the principles of fundamental justice.

[30] Finally, we agree with the trial judge that a conditional notice envisioned in s. 4 of the TPA would be ineffective in relation to the accused in light of his “persistence and resourcefulness to escape detection.” Twenty-two knowing violations of a law, without remorse and without a commitment to alter conduct, disentitles the accused to make a serious submission grounded in the niceties of a conditional prohibition. The only way to ensure his compliance is to ban him at the gate of the premises.

[31] In conclusion, we specifically endorse the trial judge’s summary on this issue:

Government officials, charged with the responsibility of effective operation of one of the world’s busiest airports, in an effort to provide a superior and safe commercial passenger service to the travelling public and to avoid traffic chaos and the potential for violence at the Toronto Airport, came to a reasonably held view that the trespass initiative would significantly further these important objectives. The action was legitimately taken in good faith and in an evenhanded, not an arbitrary, or capricious, way. The means chosen were rational and, in the circumstances of the entire history of the accused, were justified with a rational connection between the means chosen and the objectives pursued. Within an acceptable range, the solution adopted by federal airport authorities, exercising a legal right to manage property in the public interest of the users of the facility, was sufficiently tailored to intrude to the extent reasonably viewed as necessary to stop the accused, and those of a similar bent, from undermining the regulatory scheme for commercial vehicles operating at the airport. In light of the accused’s evasiveness and contempt for regulation by the occupier, no lesser intrusion than absolute refusal of admittance could reasonably be viewed as proportionate to the problem faced.

Issue 2 – Did the trial judge err in concluding that s. 9 of the TPA, and the arrest of the accused under this provision, did not violate s.9 of the Charter?

[32] The accused contends that s. 9 of the TPA violates s. 9 of the Charter. He submits that s. 9 of the TPA authorizes an arbitrary detention because there are no criteria by which a citizen can judge whether to effect an arrest.

[33] We disagree. In our view, the trial judge’s analysis on this issue is unassailable:

The trespass statute authority to arrest is actually quite narrow in scope and application. The jurisdiction to arrest relates to a single offence – trespass. The citizen must see the subject actually on the premises in circumstances of trespass addressed by s. 2 of the Act. Unlike the Criminal Code scheme, the arresting party, pursuant to s. 9, must have reasonable and probable grounds to believe the offence is being committed. Such a state of belief includes both subjective belief and an objectively reasonable component for the arresting party’s conclusion: Storrey v. The Queen (1990), 1990 125 (SCC), 53 C.C.C. (3d) 316 (S.C.C.) at 323-4 per Cory J. Lastly, the arrestee is to be promptly transferred to the custody of a police officer.

[34] The accused also submits that the blanket policy of arrest in all cases of trespass at the airport was in and of itself arbitrary.

[35] We do not understand this submission. A uniform policy of arrest of trespassers which follows the principles enunciated by the trial judge strikes us as a model of consistency, not arbitrariness.

Issue 3 – Did the trial judge err in concluding that the inspector did not have legal authority to use reasonable force upon arresting the accused?

[36] The position of the Crown is that the power to arrest found in s. 9 of the TPA must, by virtue of the common law and by necessary and reasonable implication, include the power to use reasonable force in order to effect the arrest. The Crown submits that the authority to use reasonable force is implicit and inherent in the power to arrest under s. 9 and does not require separate explicit statutory authority. The accused submits that an arrest does not by definition include the right to use force to detain the party arrested and that, in the absence of an explicit grant of statutory power, a private citizen lacks lawful authority to use force upon an arrest.

[37] For the reasons that follow, we have concluded that the Crown's submission on this point is correct in law and that the right to use reasonable force is an incident of the statutory power of arrest. In our respectful view, the trial judge erred in concluding that the inspector lacked the legal authority to exercise reasonable force in order the effect the arrest, and the Crown's appeal should be allowed and a conviction entered on the assault with intent to resist arrest charge.

The Common Law of Arrest

[38] The law defines with reasonable precision the circumstances in which a private citizen has the legal right to effect an arrest. In the present case, there is no doubt about the right of the inspector, as a private citizen, to arrest the accused pursuant to s. 9 of the TPA. There is, however, a surprising lack of explicit authority on the nature and scope of the powers attendant upon or ancillary to a private citizen's right of arrest. While this appeal deals with a statutory power of arrest, the common law relating to the law of arrest sheds light on the nature and scope of the power conferred by the legislature.

[39] Historically, the powers of arrest of ordinary citizens preceded and formed the basis of the more extensive powers of arrest of public officers. As explained by Holdsworth, A History of English Law, vol. III, 2nd impression (1973) at pp. 598-600, common law powers of arrest are derived from the rights and duties of ordinary citizens in relation to the maintenance of “the King’s peace”. In early times, before the advent of professional police forces, the ordinary citizen not only enjoyed the right to make arrests, but was duty-bound in certain cases to do so.

[40] There can be little doubt that at common law, the private citizen's powers of arrest included the authority to use force to ensure that the person arrested was detained to be brought to justice. The private citizen was duty-bound to effect the arrest in order to ensure the King's peace and subject to legal penalties for failure to live up to this duty. The law could hardly expect the citizen to fulfil this duty without the right to use reasonable force to ensure that the arrested party was brought to justice. Blackstone, Commentaries on the Law of England, Book 4, Lewis ed. (1897) at p. 289 defines arrest as “the apprehending or restraining of one’s person, in order to be forthcoming to answer an alleged or suspected crime.” Blackstone describes the common law powers of arrest by a private person without warrant at pp. 292-93:

Any private person (and a fortiori a peace-officer) that is present when any felony is committed is bound by the law to arrest the felon, on pain of fine and imprisonment if he escapes through the negligence of the standers-by. And they may justify breaking open the doors upon following such felon; and if they kill him, provided he cannot be otherwise taken, it is justifiable; though if they are killed in endeavoring to make such arrest it is murder. Upon probable suspicion, also, a private person may arrest the felon or other person so suspected, but he cannot justify breaking open doors to do it; and if either party kill the other in the attempt, it is manslaughter, and no more. It is no more, because there is no malicious design to kill; but it amounts to so much, because it would be of most pernicious consequence if, under pretence of suspecting felony, any private person might break open a house or kill another, and also because such arrest upon suspicion is barely permitted by the law, and not enjoined, as in the case of those who are present when a felony is committed. [ emphasis in original]

[41] As the common law evolved, distinctions were drawn between the circumstances in which public officers and private citizens could effect an arrest. The powers of public officers expanded and the legal compulsion upon private citizens to arrest felons became obsolete. The important point is that the citizen’s power to arrest preceded that of the law enforcement officer. The latter is a species of the former, not the reverse. It follows that it is not appropriate to treat the citizen's power to arrest as exceptional or as a partial derivative of the powers possessed by peace officers. While the circumstances in which a private citizen could conduct an arrest were defined more narrowly than those of peace officers, where a private citizen had the right to effect an arrest, the right to use reasonable force to effect the arrest remained.

[42] There is little doubt that, at common law, a private citizen who had the lawful authority to arrest was also authorized to use reasonable force to ensure that the arrest was effective and that the arrested party was brought to justice. The right to use reasonable force is, in the eyes of the common law, simply part and parcel of the right to make an arrest.

Application of Common Law Principles to Statutory Powers of Arrest.

[43] The accused submits that, as the TPA does not explicitly confer the right to use reasonable force upon arrest, recourse to common law authority should be avoided. We do not accept that submission. The relevance of common law principles to the definition and scope of statutory powers of arrest is well established in Canadian law. In Eccles v. Bourque, (1974), 1974 191 (SCC), 19 C.C.C. (2d) 129 (S.C.C.), the issue was whether a peace officer authorized to make an arrest had the lawful authority to commit a trespass if necessary to make the arrest. Dickson J. concluded that although there was no statutory authority to trespass, the officer did have the authority by virtue of the common law. Similarly, the power to conduct a personal search upon arrest is not provided for in the Criminal Code, but has been found to exist by virtue of the common law: see R. v. Alderton (1985), 1985 1955 (ON CA), 49 O.R. (2d) 257 (C.A.); R. v. Lerke (1986), 1986 ABCA 15, 24 C.C.C. (3d) 129 (Alta C.A.). In R. v. Godoy (1999) 1999 709 (SCC), 131 C.C.C. (3d) 129 (S.C.C.) at p. 135 (referring to R. v. Stenning, 1970 12 (SCC), [1970] S.C.R. 631; Knowlton v. The Queen, 1973 148 (SCC), [1974 S.C.R. 443 and Dedman v. The Queen, 1985 41 (SCC), [1985] 2 S.C.R. 2), Lamer C.J.C. described "the accepted test for evaluating the common law powers and duties of the police" as follows:

If police conduct constitutes a prima facie interference with a person's liberty or property, the court must consider two questions: first, does the conduct fall within the general scope of any duty imposed by statute or recognized at common law; and second, does the conduct, albeit within the general scope of such a duty, involve an unjustifiable use of powers associated with the duty. [emphasis added]

[44] There is also a related principle that a statute conferring an investigative power on the police carries with it "ancillary powers" that arise "by necessary implication and unavoidable inference": see Lyons v. The Queen (1984), 1984 30 (SCC), 15 C.C.C. (3d) 417 at p. 444 (S.C.C.); R. v. Simpson (1993) 1993 3379 (ON CA), 79 C.C.C. (3d) 482 at p. 496 (Ont. C.A.).

[45] The submission that the powers of someone conducting a lawful arrest must be strictly limited to the literal terms of what is specified by the statute authorizing the arrest is at odds with Eccles v. Bourque and the cases dealing with the right to search the person arrested. In those cases, common law principles defining the powers of a party conducting an arrest were applied to elaborate the powers of a party acting under the authority of a statute. When the legislature uses a word such as "arrest" that has an established meaning in law, the legislature must be taken to have intended the word to be interpreted in light of that meaning. As Lord Diplock stated in Holgate-Mohammed v. Duke, [1984] 1 A.C. 437 at p. 441, when the word "arrest" appears in a statute, it is a "term of art". By authorizing a private citizen to conduct an arrest in s. 9 of the TPA, the legislature may be taken to have adopted a shorthand method of authorizing whatever powers are implicit or inherent in the very meaning of arrest by virtue of established common law principles.

[46] The leading Canadian case dealing with the powers ancillary to an arrest by a private citizen is the decision of the Alberta Court of Appeal in R. v. Lerke, supra. The appellant had been arrested as a trespasser by a private citizen following an incident in a bar. The arrest was made pursuant to Alberta's Petty Trespass Act which confers a power of arrest in terms very similar to the TPA. Upon the arrest, the private citizen searched the pockets of the appellant and found an illegal drug. The appellant was charged with possession of the drug. A crucial issue was whether the private person who made the arrest also had the lawful authority to search the person of the party arrested. The statute clothing the private citizen with the power to effect the arrest was silent on the point. Writing for the court, Laycraft C.J.A. reviewed the historical common law origins of the citizen's power to arrest and observed at p. 134:

The conclusion of English historians is that the citizen’s right to arrest should not be analyzed as being derived from the rights of a peace officer or as consisting of some portion only of the rights and powers of a peace officer. The reverse is true. A peace officer possesses the rights of a citizen with some additions. For the most part, he does as a matter of duty the acts which he might have done voluntarily.

[47] Laycraft C.J.A. concluded that where a citizen had the right to conduct an arrest, the powers ancillary to that right should be treated as equivalent to those possessed by the police. Laycraft C.J.A. cited this Court’s decision in R. v. Alderton, supra, where Martin J.A. held that it was settled law that police officers may automatically conduct a reasonable search of an arrested person after a valid arrest and seize anything that they believe will afford evidence of the offence in question. In considering the application of the law pertaining to police officers to the context of the citizen’s arrest, Laycraft C.J.A. held at p. 135.

The modifications to the common law power of a citizen to make an arrest incorporated in the Criminal Code or in the Petty Trespass Act do not change the fundamental nature of the citizen's arrest. The power exercised by a citizen who arrests another is in direct descent over nearly a thousand years of the powers and duties of citizens in the age of Henry II in relation to the "King's Peace". Derived from the sovereign it is the exercise of a State function.

[48] Laycraft C.J.A. commented on the search powers of citizens and police officers as follows, at p. 139:

In both cases the search is needed for protection of the person making the arrest against later attack by the person arrested who might use a concealed weapon. It is also needed to obtain and preserve evidence related to the offence for which the arrest is being made. … Of course there are fewer occasions when a private citizen is permitted to make an arrest compared to a police officer. But if the private citizen is acting validly within his more limited powers, I see no ground to suppose that his rights of search incidental to that arrest are less or different than those of a police officer.

A citizen may, on occasion, have greater need of a right to search than does the peace officer. Citizen’s arrests, infrequently as they occur, take place when the police are neither present nor available. Often they result from a chase, in circumstances where violent reaction can be expected. The citizen has neither side-arm, badge nor uniform, let alone warrant, on which to rely. He lacks the coercive presence of these attributes of authority which help the peace officer to avoid violence. The right to search, at least to disarm, is essential. [emphasis added]

[49] In our view, the same reasoning should govern the circumstances of this case. At common law, a private citizen has the right to use reasonable force to ensure that the accused is brought to justice. Similarly, it is well accepted in Canada that a police officer has the right to use reasonable force to effect an arrest: see R. v. Whitfield (1969), 1969 4 (SCC), 7 D.L.R. (3d) 97 at p. 99 (S.C.C.); R. v. Tricker (1995), 1995 1268 (ON CA), 96 C.C.C. (3d) 198 at p. 207 (Ont. C.A.). There is no dispute that the inspector had the power to arrest the accused under the authority of the TPA and that he did effect an arrest. The actions of the accused resisting the arrest and escaping the custody of the inspector made the use of some force by the inspector necessary if the arrest was to be effective. The common law principles defining arrest as including the right to use reasonable force support the conclusion that implicit in the statutory power is the right to use reasonable force to ensure the arrest is effective.

Is the right to use reasonable force excluded by s. 146 of the Provincial Offences Act?

[50] The accused submits that the legislature addressed the question of the use of reasonable force in the Provincial Offences Act, s. 146. That section only applies to police officers or private citizens called to assist police officers and does not apply to private citizens who make arrests. The accused submits that it follows by implication that as private citizens making arrests are not covered by the section, they do not have the right to use force.

[51] We were not referred to any authority on s. 146 itself. However, s. 146 is cast in terms similar to s. 25 of the Criminal Code. It has been consistently held that s. 25 of the Criminal Code does not confer powers upon police officers or others, but rather shields them from civil or criminal prosecution if they act on reasonable and probable grounds in the exercise of their authority and use reasonable force for that purpose. The argument that s. 25 is a power-conferring provision was rejected by Dickson J. in Eccles v. Bourque, supra at p. 131:

Section 25 does not have such amplitude. The section merely affords justification to a person for doing what he is required or authorized by law to do in the administration or enforcement of the law, if he acts on reasonable and probable grounds, and for using necessary force for that purpose. The question which must be answered in this case, then, is whether the respondents were required or authorized by law to commit a trespass; and not, as their counsel contends, whether they were required or authorized to make an arrest. If they were authorized by law to commit a trespass, the authority for it must be found in the common law for there is nothing in the Criminal Code.

See also the judgment of this court in R. v. Brennan (1989), 1989 7169 (ON CA), 52 C.C.C. (3d) 366 at pp. 372-74.

[52] In our view, s. 146 of the Provincial Offences Act does not confer the power to use force, but rather provides a defence to a civil action. It serves, in other words, as a "shield" and not as a "sword", and accordingly does not represent a legislative attempt to deal exhaustively with the use of force by those conducting arrests. We therefore reject the contention that the exclusion of arrests by private citizens from the protective shield of s. 146 is indicative of a legislative intention to limit the authority of private citizens to use reasonable force when conducting a lawful arrest under provincial legislation.

[53] Two Ontario statutes deal directly with the citizen’s power of arrest. The Fish and Wildlife Conservation Act, 1997, S.O. 1997, c. 41, ss. 93(1), (2) provides that a conservation officer has the power of arrest in certain circumstances and that he or she may use reasonable force in so doing. Similarly, the Fish Inspection Act, R.S.O. 1990, c. F-18, ss. 7(2), (3) provides that an inspector has certain powers of arrest; and that reasonable force may be used in the exercise of such powers. As noted earlier, the trial judge referred as well to other statutes expressly providing for the use of force in certain circumstances. We do not regard the fact that the legislature went out of its way to specify the power to use force in aid of the powers conferred by these statutes as sufficient to displace the interpretation we have indicated as being appropriate for the TPA.

Are the powers of the citizen conducting arrest exhausted once an arrest has been legally effected?

[54] The accused submits that as the arrest was complete in law when the inspector touched the shoulder of the accused and informed him that he was under arrest, no further use of force can be justified as being necessary to effect the arrest.

[55] In our view, it would be inappropriate to allow the minimal degree of force sufficient to constitute an arrest to limit the powers that may be required where the actions of the arrested party make it necessary to use more than minimal force to make the arrest effective.

[56] In R. v. Whitfield, supra, the Supreme Court of Canada rejected the submission that there were two categories of arrest, symbolic and custodial. Judson J. at p. 98 adopted the following passage from 10 Halsbury’s Law of England, 3rd ed. (1955), p. 342 as the correct definition of arrest:

631. Meaning of Arrest. Arrest consists of the actual seizure or touching of a person’s body with a view to his detention. The mere pronouncing of words of arrest is not an arrest, unless the person sought to be arrested submits to the process and goes with the arresting officer. An arrest may be made either with or without a warrant.

This definition of arrest has been accepted in subsequent cases: see R. v. Latimer, 1997 405 (SCC), [1997] 1 S.C.R. 217 at p. 231; R. v. Delong (1989), 1989 7164 (ON CA), 47 C.C.C. (3d) 402 at p. 417 (Ont. C.A.). Other courts have also defined arrest in terms that include the power to ensure that the party arrested submits to the control and custody of the arrester. In Hussien v. Chong Fook Kam, [1970] A.C. 942 at p. 947 (P.C.), Lord Devlin defined arrest in the following terms:

An arrest occurs when a police officer states in terms that he is arresting or when he uses force to restrain the individual concerned. It occurs also when by words or conduct he makes it clear that he will, if necessary, use force to prevent the individual from going where he may want to go.

[57] In its study, Arrest (Working Paper 41, 1985) at p. 31, the Law Reform Commission of Canada, relying on Whitfield, supports a definition in which “physical restraint, or submission to physical restraint, is the essence of arrest and this concept is virtually synonymous with ‘detention,’ ‘custody,’ or ‘imprisonment’”.

[58] In Whitfield, a police officer stopped the respondent at a traffic light and alighted from his police cruiser to effect an arrest. The respondent tried to drive off, but the constable was eventually able to reach inside the moving car’s window, grab the respondent’s shirt with both hands, and tell him that he was under arrest. The respondent then accelerated and broke the constable’s hold and drove off, injuring the officer in the process. The respondent was charged with criminal negligence causing bodily harm and escaping lawful custody. He was acquitted of the first charge but convicted on the second. This court allowed an appeal, setting aside the conviction and directing an acquittal on the charge of escaping lawful custody, on the grounds that the respondent was at no time “custodially arrested”.

[59] The majority in the Supreme Court of Canada held that the Court of Appeal had erred by requiring something more than an “arrest in symbolical form”. Judson J. held at p. 98: “There is no room for what seems to be a new subdivision of ‘arrest’ into ‘custodial’ arrest and ‘symbolical’ or ‘technical’ arrest. An accused is either arrested or he is not arrested.” Judson J. then quoted the following passage from the Court of Exchequer Chamber in Sandon v. Jervis (1859), 1 El. Bl. & El. 942, 120 E.R. 760:

It is a matter of positive law whether a mere touch is to constitute an arrest or not. It might have been reasonably prescribed either that it should not be necessary to an arrest that there should be a possession of the person. But probably the reason which led to the laying down of the law as it stands was that it was thought desirable to avoid unnecessary violence; and therefore it was determined that, if the officer was near enough to the debtor to touch him, it was the duty of the debtor to submit; and this for the purpose of preventing conflict. I may remark parenthetically that what the law of England most aims at is the preservation of peace. It will not allow a man to take forcible possession of even his own property. But, whatever be the reason, the law is that, if the officer is near enough to the debtor to touch him, and does touch him, and gives him notice of the writ, it is an arrest. I can well understand the reason for its being so held. [italics added, underline in original]

Judson J. concluded, at p. 99:

These authorities which have stood for so long should not now be limited to a process which has become obsolete. The reason for the rule is equally compelling today as it was in the past. A police officer has the right to use such force as may be necessary to make an arrest. What kind of arrest are we to expect if it becomes a principle of law that a police officer, acting under a warrant of which he informs the accused, and who actually seizes the accused’s person, is found not to have made an arrest because the accused is in the driver’s seat of a motor car which enables him to shake off the arresting officer? [emphasis added]

[60] In our view, it follows from the reasoning in Whitfield that the power of arrest conferred by the TPA should not be interpreted as being limited, as the accused would have it, to a power to effect what would amount to a "symbolic" or "technical" arrest in which force is not employed. Whitfield rejects the bifurcation of arrest into forcible arrests and symbolical arrests. There is, as held by the Supreme Court of Canada, only one category of arrest and implicit in the definition of that single category of arrest is the power to use the reasonable force necessary to effect the arrest.

[61] We would also note on this point that it is well established that, at common law, an arrest does not end with the initial apprehension of the suspect. A private person who effects an arrest without warrant is obliged to turn the person arrested over to the authorities to be dealt with according to law. The purpose of an arrest is to ensure that the party arrested is brought to justice, and the common law defines arrest in terms of a continuing act, not just the initial apprehension and assertion of control. In John Lewis & Co. Ltd. v. Tims, [1952] 1 All E.R. 1203 at pp. 1209-11 (H.L.), Lord Porter reviewed the authorities on the point, and held at p. 1210 that "the arrestor is not free of his obligation until he has proceeded before a magistrate.” Similarly, in Holgate-Mohammed v. Duke, supra at p. 441, Lord Diplock stated:

…it should be noted that arrest is a continuing act; it starts with the arrester taking a person into his custody, (sc. by action or words restraining him from moving anywhere beyond the arrester's control), and it continues until the person so restrained is either released from custody or, having been brought before a magistrate, is remanded in custody by the magistrate's judicial act.

[62] The TPA makes explicit reference to the private citizen's duty to deliver the arrested party. Pursuant to s. 9(2), a private party who makes an arrest is required promptly to call for police assistance and to deliver the person arrested into the custody of the police officer. This statutory duty corresponds to the duty that exists at common law. It indicates that the nature of the arrest contemplated by the TPA consists of continuing control and constraint, not merely the touching and initial apprehension of the trespasser.

Policy issues

[63] The trial judge was quite properly concerned with the implications of according private citizens the right to use force in conducting arrests. We agree that limiting the risk of escalating violence in the tense circumstances often surrounding arrests by private citizens is an important policy objective to be pursued in this area of the law. However, we do not agree that denying the private citizen the right to use reasonable force is unambiguously the best way to minimize the risk of escalating violence. Private citizens do not have broad powers of arrest. A private citizen’s power of arrest is restricted, for the most part, to situations in which there is an observable crisis. Where, as in the present case, the party arrested does not comply willingly with the arrest, there is an inherent risk of violence. The issue is who becomes the wrongdoer if force is used. If the party conducting a legal arrest has no power to employ reasonable force to effect the arrest in the face of unlawful resistance, the law would create a situation in which the party being arrested is free to resist the arrest without fear of reprisal. If the party conducting the arrest attempts to use force to control the arrested party, such force would not be justified and the arrester becomes the wrongdoer. Arguably, this legal regime would unduly encourage those being arrested to resort to unlawful means to avoid the arrest. It may well be that maintenance of public peace would be better served by allowing private persons to use reasonable force to bring offenders under control.

[64] A related point is the apparent lack of logic in a regime that entitles a party to conduct a lawful arrest but prevents him or her from using reasonable force to make the arrest effective. The accused was legally required to comply with the lawful arrest conducted by the inspector. Up to the point the accused resisted the arrest and escaped the inspector's custody, the inspector's actions were lawful. The actions of the accused in resisting the arrest and escaping the inspector's custody were unlawful. Those unlawful actions were met with a direct and understandable response by the inspector. The minimal force used by the inspector would clearly pass any test of reasonableness. Yet on the legal theory advanced by the accused, the inspector's use of force would be unlawful and would represent an illegal assault. To accept that theory would be to say that, although the arrest was lawful, as soon as the arrested party resisted the arrest, the arrester would immediately have to desist and not respond to the unlawful actions of the arrested party. In our view, it is difficult to accept the proposition that in this sequence of actions, the unlawful act of the arrested party should render the subsequent acts of the arrester illegal.

[65] On this issue, we find the discussion in Bassiouni, Citizen’s Arrest: The Law of Arrest, Search, and Seizure For Private Citizens and Private Police (1977) to be helpful. Bassiouni, at p. 54, analyzes of the relationship between the prohibition on resisting legal arrest and the policies behind the citizen’s arrest:

An arrest is by its very nature a limitation on the personal freedom of the arrestee. To allow resistance to arrest would be to deny the ranking (superiority) of the right of the arrestor over the right of the arrestee to be free from any limitations thereto. The inarticulate premise of such an argument rests on the lawfulness of the arrest (which includes the authority of the arrestor). The outcome of this assertion is predicated on the balancing of the right to perform an arrest (lawful and with legal authority) and the right to be free from restraint. Where the first is allowed, the second must abate. [emphasis added]

[66] Bassiouni then discusses the public order policy of several of the American jurisdictions that deny a right to resist any form of arrest (i.e. whether lawful or not). He writes at pp. 55-56:

…If prohibition against resisting arrest is dependent upon who is the performer of the arrest, then a distinction can be made between a peace officer and a citizen whereby, by reason of his duties, the officer would be shielded by the law more than the citizen. If the prohibition is based solely on a public order consideration, then no distinction should be made between a citizen and a peace officer since resisting arrest in either case is disruptive of public order and contravenes the exercise of a public order function.

Were the law to discourage citizen’s arrest, it would allow resisting it; but in that case, the right or privilege to perform a citizen’s arrest would not legally exist. One can then assume that a right or privilege must be generative at law of a superior authority which imposes limitations upon another right deemed subject to legally imposed infirmities. [emphasis added]

In footnotes to the above, Bassiouni states (at pp. 55-56):

…Use of force to perform an arrest or prevent the commission of an offense or stop the escape of a criminal is not a license but a legal privilege. It must be exercised within the legal limitations delineated by law in the context of the purposes and aims of the privilege. An arrest is intended to prevent the commission of a crime and to apprehend any offender. The force to be employed must be commensurate to that which the circumstances and conduct of the offender reasonably project in the eyes of the arresting officer.…

…A private person who makes or assists another private person in making a lawful arrest need not retreat or desist from efforts to make a lawful arrest because of resistance or threatened resistance to the arrest. He is justified in the use of force which he reasonably believes to be necessary to effect the arrest and of any force which he reasonably believes to be necessary to defend himself or another from bodily harm while making the arrest.

What is “reasonable force”?

[67] We emphasize that at issue here is the use of reasonable force to make an arrest effective. No issue is taken with the proposition that the force used by the inspector was reasonable in the circumstances. In these circumstances, it is not necessary for us to consider the limits of reasonable force. However, it should be mentioned that the valid policy concerns expressed by the trial judge on the importance of legal rules that limit violence or the risk of escalation of violence have an important bearing on the limits of reasonable force.

[68] We conclude accordingly that the inspector had lawful authority to use reasonable force in effecting a lawful arrest pursuant to s. 9 of the TPA. It follows that the trial judge erred in finding the accused not guilty of assault with intent to resist arrest.

Conclusion

[69] Accordingly, we would dismiss the accused’s appeal against the convictions for escaping lawful custody and allow the Crown’s appeal against the acquittal of assault with intent to resist arrest. On that count, we would enter a conviction and remit the matter to the trial judge for sentencing.

“J. C. MacPherson J.A.”

“Robert J. Sharpe J.A.”

“I agree S.T. Goudge J.A.”

Released: October 1, 2001