R. v. Asante‑Mensah, [2003] 2 S.C.R. 3, 2003 SCC 38

Daniel Asante‑Mensah Appellant

v.

Her Majesty The Queen Respondent

Indexed as: R. v. Asante‑Mensah

Neutral citation: 2003 SCC 38.

File No.: 28867.

2002: November 7; 2003: July 11.

Present: McLachlin C.J. and Gonthier, Iacobucci, Major, Bastarache, Binnie, Arbour, LeBel and Deschamps JJ.

on appeal from the court of appeal for ontario

Trespass — Arrest — Arrest without warrant on premises by person authorized by occupier — Reasonable force — Whether a citizen can use reasonable force in making a lawful arrest under Ontario’s Trespass to Property Act — Concept of arrest — Trespass to Property Act, R.S.O. 1990, c. T.21, s. 9.

The appellant, a taxi driver, repeatedly “scooped” fares at the arrivals level of Pearson International Airport (Toronto) without a permit, contrary to regulations. He continued to do so, notwithstanding having received notice under s. 3 of the provincial Trespass to Property Act (“TPA”) prohibiting entry for any purpose onto airport property. He shrugged off the fines resulting from charges of trespass. In an effort to control the problem of taxi drivers, including the appellant, soliciting fares without proper licences on airport premises, the airport authorities decided to exercise their power of “citizen’s” arrest under s. 9 of the TPA. This appeal arose from an incident where an airport inspector approached the appellant, touched his shoulder, and informed him that he was under arrest for trespassing and that he would be detained for police arrival. The appellant attempted to enter his vehicle to flee the scene but the inspector blocked his way. During the confrontation, the appellant shoved his car door into the person of the inspector to cause him to back off and fled. The trial judge concluded that the appellant could not be convicted of resisting a lawful arrest because the inspector used “reasonable force” to make the arrest but was not authorized to do so. The Court of Appeal set aside the acquittal and substituted a conviction.

Held: The appeal should be dismissed.

The word “arrest” has a well‑understood meaning at common law. It is a term of art. Unless the context otherwise dictates, the court should interpret the word as it appears in s. 9 of the TPA in accordance with the common law of arrest. Otherwise, there is no guidance at all to occupiers about how to “arrest” somebody, let alone what conduct the occupier is permitted and what is not permitted, and conversely, what are the rights of the alleged trespasser.

“Arrest” in the context of the TPA should therefore be seen as a continuing status initiated by words accompanied by physical touching or submission and ending with delivery to the police, maintained as necessary with a force that is no more than reasonable in all the circumstances. The occupier is permitted the means (reasonable force) to fulfill the duty (delivery of the person arrested) to achieve the purpose of the arrest (to terminate the trespass and bring the trespasser to the police to be dealt with according to law).

The TPA relates to a highly specific and limited offence. The effect of denying the occupier the right to use any degree of force would be to subject him or her to tort claims because of the attempt to deliver the arrested person to the police in compliance with s. 9(2) of the TPA. Where a lawful arrest under the TPA occasions some intentional pushing and shoving, the question is, who should be treated as the wrongdoer, the person performing the arrest or the arrested person? The legislature should not be taken as intending to lay on the occupier a duty to deliver the person arrested to the police and at the same time impose civil or criminal liability for the use of reasonable force necessary for its fulfilment.

An occupier is therefore entitled to use reasonable force both to initiate the status of arrest and to maintain it. Once the trespasser is delivered to the police, s. 9(3) of the TPA deems that the officer has made the arrest. At that point, it will be out of the hands of the occupier to determine if the arrest should be maintained or whether lesser measures suffice.

The ability to use force is necessary to the efficacy of the arrest power because it often provides a necessary precondition to securing the submission of the person arrested. The use of reasonable force is therefore supported not only by the incidents of arrest at common law but also by s. 28(b) of the Ontario Interpretation Act.

The courts below rejected the appellant’s Charter challenge to s. 9 of the TPA based on s. 7 (“fundamental justice”) and s. 9 (“arbitrary detention or imprisonment”). The challenge was not renewed here.

“Reasonable force” in the context of the TPA will have regard not only to what force is necessary to accomplish the arrest, but also to whether a forcible arrest was in all the circumstances a reasonable course of action in the first place.

Since many trespasses are of trivial importance, they are best handled by means short of an arrest. The latitude shown to police officers, who are under a duty to act and must often react in difficult and exigent circumstances, will not necessarily be shown to an occupier who is under no duty to act and who instigates a confrontation with a trespasser.

The arrest was a reasonable course of action on the facts of this case. All other attempts to secure the appellant’s compliance had failed. The amount of force applied by the inspector was, on the facts of this case, no more than was reasonable.

Cases Cited

Referred to: R. v. Lerke (1986), 1986 ABCA 15, 24 C.C.C. (3d) 129; Eccles v. Bourque, 1974 191 (SCC), [1975] 2 S.C.R. 739; R. v. Page, [1964] O.J. No. 383 (QL); Holgate‑Mohammed v. Duke, [1984] A.C. 437; Murray v. Ministry of Defence, [1988] 1 W.L.R. 692; King v. Poe (1866), 15 L.T.R. (N.S.) 37; Frey v. Fedoruk, 1950 24 (SCC), [1950] S.C.R. 517; Christie v. Leachinsky, [1947] A.C. 573; Colet v. The Queen, 1981 11 (SCC), [1981] 1 S.C.R. 2; R. v. Whitfield, 1969 4 (SCC), [1970] S.C.R. 46; R. v. Latimer, 1997 405 (SCC), [1997] 1 S.C.R. 217; Hussien v. Chong Fook Kam, [1970] A.C. 942; Sandon v. Jervis (1859), El. Bl. & El. 942, 120 E.R. 760; Nicholl v. Darley (1828), 2 Y. & J. 399, 148 E.R. 974; Genner v. Sparks (1704), 6 Mod. Rep. 173, 87 E.R. 928; Spicer v. Holt, [1977] A.C. 987; Grainger v. Hill (1838), 4 Bing. (N.C.) 212, 132 E.R. 769; Alderich v. Humphrey (1898), 29 O.R. 427; Higgins v. MacDonald (1928), 1928 531 (BC CA), 50 C.C.C. 353; R. v. Platten (2000), 2000 ABPC 11, 258 A.R. 153; R. v. Morris (2001), 2001 ABQB 109, 283 A.R. 272; Dedman v. The Queen, 1985 41 (SCC), [1985] 2 S.C.R. 2; R. v. Godoy, 1999 709 (SCC), [1999] 1 S.C.R. 311; R. v. Cunningham (1979), 1979 2874 (MB COCT), 49 C.C.C. (2d) 390; R. v. Tricker (1995), 1995 1268 (ON CA), 96 C.C.C. (3d) 198; R. v. Ambrose, [1999] O.J. No. 3607 (QL); Spencer v. Pollard (1989), 1989 4219 (ON SC), 68 O.R. (2d) 730; Pozniak v. Sault Ste. Marie Police Services Board (2000), 2000 26995 (ON SCDC), 139 O.A.C. 186; Mobarakizadeh v. Viking Rideau Corp., [2001] O.J. No. 5045 (QL); Diggs v. Century Investigation and Security Services Inc., [2002] O.J. No. 4251 (QL); MacDonald v. Hees (1974), 1974 1289 (NS SC), 46 D.L.R. (3d) 720; Mullins v. Levenick, [1998] N.B.J. No. 60 (QL); Chopra v. Eaton (T.) Co. (1999), 1999 ABQB 201, 240 A.R. 201; Briggs v. Laviolette (1994), 21 C.C.L.T. (2d) 105; R. v. Freake (1990), 85 Nfld. & P.E.I.R. 25; Cluett v. The Queen, 1985 52 (SCC), [1985] 2 S.C.R. 216; R. v. Biron, 1975 13 (SCC), [1976] 2 S.C.R. 56; Besse v. Thom (1979), 1979 2791 (BC SC), 96 D.L.R. (3d) 657, rev’d (1979), 1979 633 (BC CA), 107 D.L.R. (3d) 694; R. v. Bottrell (1981), 1981 339 (BC CA), 60 C.C.C. (2d) 211; R. v. Simpson (1993), 1993 3379 (ON CA), 79 C.C.C. (3d) 482.

Statutes and Regulations Cited

Act to provide for the Summary Punishment of Petty Trespasses and other offences, S.U.C. 1834, 4 Wm. 4, c. 4, s. 5.

Canadian Charter of Rights and Freedoms, ss. 7, 9.

Coastal Fisheries Protection Act, R.S.C. 1985, c. C‑33, s. 8 [am. 1999, c. 19, s. 5].

Criminal Code, R.S.C. 1985, c. C‑46, ss. 25, 41(1), 145(1) [rep. & sub. 1985, c. 27 (1st Supp.), s. 20], 270(1), (2), 494.

Fish and Wildlife Conservation Act, 1997, S.O. 1997, c. 41, s. 93(2).

Fish Inspection Act, R.S.O. 1990, c. F.18, s. 7(3) [am. 1999, c. 12, Sch. N, s. 2(2)].

Government Airport Concession Operations Regulations, SOR/79‑373.

Immigration and Refugee Protection Act, S.C. 2001, c. 27, ss. 55, 138.

Interpretation Act, R.S.O. 1990, c. I.11, s. 28.

National Defence Act, R.S.C. 1985, c. N‑5, s. 154 [am. 1985, c. 31 (1st Supp.), s. 48; am. 1998, c. 35, s. 92(d)].

Occupiers’ Liability Act, S.O. 1980, c. 14.

Petty Trespass Act, R.S.N.L. 1990, c. P‑11, s. 4.

Petty Trespass Act, R.S.O. 1970, c. 347.

Petty Trespasses Act, R.S.M. 1987, c. P50, s. 2.

Protection of Property Act, R.S.N.S. 1989, c. 363, s. 6.

Provincial Offences Act, R.S.O. 1990, c. P.33, ss. 146, 147.

Statute of Winchester, 13 Edw. 1, Stat. 2, c. 1, 2, 4, 6.

Trespass Act, R.S.B.C. 1996, c. 462, ss. 8, 9, 10.

Trespass Act, S.N.B. 1983, c. T‑11.2, s. 7.

Trespass to Premises Act, R.S.A. 2000, c. T‑7, s. 5.

Trespass to Property Act, R.S.O. 1990, c. T.21, ss. 2, 3, 4, 9.

Trespass to Property Act, R.S.P.E.I. 1988, c. T‑6, s. 5.

Trespass to Property Act, 1980, S.O. 1980, c. 15.

Authors Cited

Anand, Raj. Task Force on the Law Concerning Trespass to Publicly‑Used Property as it Affects Youth and Minorities. Toronto: Ontario Ministry of the Attorney General, 1987.

Blackstone, William. Commentaries on the Laws of England, Book IV. Oxford: Clarendon Press, 1769.

Canada. Law Reform Commission. Working Paper 41. Arrest. Ottawa: The Commission, 1985.

Fridman, Gerald Henry Louis. The Law of Torts in Canada, vol. 1. Toronto: Carswell, 1989.

Halsbury’s Laws of England, vol. II(I), 4th ed. (reissue). By Lord Hailsham of St. Marylebone. London: Butterworths, 1990.

Hawkins, William. A Treatise of the Pleas of the Crown; or, A system of the principal matters relating to that subject, digested under proper heads, 8th ed., vol. II. London: S. Sweet, 1824.

Holdsworth, Sir William. A History of English Law, vol. III, 2nd imp. London: Methuen & Co., 1973.

McLeod, Ross. Parapolice: A Revolution in the Business of Law Enforcement. Toronto: Boheme Press, 2002.

Ontario. Pearson International Airport Taxi and Limousine Task Force. Report to the Ontario Minister of Municipal Affairs. Toronto: The Task Force, 1990.

Ontario. Ministry of the Attorney General. Discussion Paper on Occupiers’ Liability and Trespass to Property. Toronto: Ministry of the Attorney General, 1979.

Ontario. Ministry of the Attorney General. This land is whose land? A legal guide to property protection rights. Toronto: Ministry of the Attorney General, 1987.

Rigakos, George S. The New Parapolice: Risk Markets and Commodified Social Control. Toronto: University of Toronto Press, 2002.

Salhany, Roger E. Canadian Criminal Procedure, 6th ed. Aurora, Ont.: Canada Law Book, 1994 (loose‑leaf updated May 2003, release 18).

Stenning, Philip C., and Clifford D. Shearing. Search and Seizure: Powers of Private Security Personnel. Study paper prepared for the Law Reform Commission of Canada. Ottawa: The Commission, 1979.

Stephen, James Fitzjames. A History of the Criminal Law of England, vol. I. London: MacMillan and Co., 1883.

APPEAL from a judgment of the Ontario Court of Appeal (2001), 2001 7279 (ON CA), 204 D.L.R. (4th) 51, 150 O.A.C. 325, 157 C.C.C. (3d) 481, [2001] O.J. No. 3819 (QL), dismissing the accused’s appeal against the convictions for escaping lawful custody and allowing the Crown’s appeal against the acquittal of assault with intent to resist arrest by the Ontario Court of Justice (General Division), [1996] O.J. No. 1821 (QL). Appeal dismissed.

Jennifer D. Thompson and Michael W. Lacy, for the appellant.

Scott C. Hutchison, for the respondent.

The judgment of the Court was delivered by

1 Binnie J. — This appeal requires us to consider whether a citizen, in making an arrest that is otherwise lawful under s. 9 of the Ontario Trespass to Property Act, R.S.O. 1990, c. T.21 (“TPA”), can use reasonable force.

2 The question is important because the TPA (like equivalent trespass statutes in other provinces) is the workhorse of private security services in their patrol of the shopping malls, airports, sports stadiums and other private spaces where the public tends to congregate.

3 The question divided the courts below. The trial judge found that a private individual has no right to use force in effecting a citizen’s arrest for a minor offence such as trespass. He also highlighted the policy implications of such a rule, expressing particular concern about the risk of an escalation of violence and the prospect of injury. In his view, the public interest would not be served by authorizing persons “other than peace officers who are trained in the limits and safe avenues of use of force” ([1996] O.J. No. 1821 (QL), at para. 182) to use physical force against other persons.

4 The Court of Appeal disagreed. In its view, where the power of arrest exists, stand-offs between the parties are to some extent inevitable, and “[t]he issue is who becomes the wrongdoer if force is used” ((2001), 2001 7279 (ON CA), 204 D.L.R. (4th) 51, at para. 63). Physical restraint, or submission to the prospect of physical restraint, is inherent in the concept of arrest. The proper and effective limitation on the occupier’s use of force is not to deny the right altogether but to focus on what is reasonable in all the circumstances. With respect, I believe the decision of the Court of Appeal properly reflects the legislative intent behind s. 9 of the TPA. I would therefore dismiss the appeal.

I. The Facts

5 The appellant, a self-professed “scooper” at Toronto’s Pearson Airport, has shown what the trial judge described as “an unrelenting pattern of contempt” (para. 121) for the efforts of the authorities to regulate the taxi and limousine business on their premises.

6 “Scoopers” pick up fares at the arrivals level without a permit, contrary to the Government Airport Concession Operations Regulations, SOR/79-373. The airport authorities believe that they are accountable to the public for the quality of taxi and limousine services. The trial judge described the pre-GACO system as something of a free-for-all “characterized by poor service, some substandard vehicles, allegations of chicanery and a lack of control which was occasionally reflected in violence” (para. 19). The 1990 Bartlett Report (prepared for the Ontario Minister of Municipal Affairs) agreed with the conclusion of the federal airport authorities that a dedicated fleet of vehicles is the best option for providing the public with an acceptable level of service at a reasonable cost.

7 Permits are now issued only to a dedicated, licensed fleet of vehicles. The appellant and about 65 other “scoopers” actively challenged this system by regularly soliciting travellers at the airport.

8 The inspectors employed by the airport authority, now a privatized entity, laid charges of trespass from time to time but these apparently had little deterrent effect. The charges were difficult to prove, because out-of-province airport users were generally not available to testify in court. Where a conviction was obtained, the fines were modest. The 1990 Bartlett Report observed that “small fines could be regarded simply as a cost of doing business . . .” (p. 12).

9 On June 4, 1990, the airport authorities issued notices under s. 3 of the TPA to scoopers, including the appellant, prohibiting entry for any purpose onto airport property. Disobedience to the notices led to charges of trespass.

10 In the year ending July 1991, the appellant had shrugged off 22 such charges. In the trial judge’s view, “[t]he accused’s testimony was demonstrably motivated by a hatred for the government witnesses and the regulatory system he has devoted himself to defeating” (para. 96).

11 The RCMP decided that they did not have the resources to deal further with the scooper problem. Accordingly, in consultation with the RCMP, the airport authorities decided to exercise their power of “citizen’s” arrest under s. 9 of the TPA.

The Subject Matter of the Charges

(i) Incident One

12 On July 22, 1991, two airport ground transportation inspectors observed the appellant’s taxi parked unattended at the curb of the arrivals level. One of them approached the appellant, touched him on the shoulder, and informed him that he was under arrest for trespassing. The appellant drove away. As a result, he was charged with escaping lawful custody. A conviction was eventually entered and is no longer under appeal.

(ii) Incident Two

13 On July 25, 1991, two inspectors again saw the appellant’s unattended taxi parked at the curb along with another scooper’s car. On seeing the appellant emerge from the terminal, one inspector approached the appellant, touched his shoulder, and informed him that he was under arrest for trespassing and that he would be detained for police arrival. The appellant attempted to enter his vehicle to flee the scene but the inspector blocked his way. (The appellant claims the inspector’s actions amounted to an assault. The trial judge found that no more than reasonable force was used.) The appellant then shoved his car door into the person of the inspector to cause him to back off and, ignoring the inspector’s protests, drove away. The door-shoving incident led to a charge of assault with intent to resist arrest. The appellant was also charged with escaping lawful custody. It is the former charge that is the basis of the present appeal.

14 The trial judge concluded that, by using force however modest and reasonable to block the appellant’s escape, the inspector’s otherwise lawful conduct became unlawful. “The accused was entitled to resist an unlawful use of force designed to continue and preserve the [lawful] arrest and custody” (para. 197 (emphasis in original)). Accordingly, he convicted the appellant for escape from lawful custody but dismissed the charge of assault with intent to resist an arrest.

(iii) Incident Three

15 Later in the afternoon of July 25, 1991, another incident at the airport led to charges against the appellant of dangerous driving, use of a weapon in committing an assault, and escaping lawful custody. The charges arose in this way. A different inspector, aware of the appellant’s previous arrest the same day, saw the appellant’s taxi “trolling” past the arrivals level at Terminal 3. He stepped out in front of the appellant’s taxi with his hand raised, holding his badge, and ordered the appellant to stop. The appellant kept on coming and, to avoid personal injury, the inspector jumped onto the hood of the appellant’s car, from where he was dislodged as the appellant accelerated to get clear of the terminal. The inspector had made no physical contact to arrest the appellant. There was clearly no submission by the appellant to the inspector’s authority. The trial judge held that no arrest had occurred and, having a reasonable doubt on other aspects of the evidence, dismissed all charges in connection with this incident.

16 The only issue that survives into this Court therefore is whether reasonable force may be used in making or continuing an arrest under s. 9 of the TPA.

II. Judicial History

A. Ontario Court (General Division), [1996] O.J. No. 1821 (QL)

17 A challenge to the constitutionality of s. 9 of the TPA based on ss. 7 and 9 of the Canadian Charter of Rights and Freedoms was rejected.

18 With respect to statutory interpretation, the trial judge held that the appellant could not be convicted of resisting a lawful arrest because the inspector was not authorized by s. 9 of the TPA to use “reasonable force” to make the arrest. Firstly, no such authority is spelled out in the TPA; secondly, such authority as may be inferred from the common law should not apply to arrests for provincial misdemeanours; and, thirdly, it would be bad public policy to read such authority into the TPA because of the inherent risk of escalation of violence and the prospect of injury to the citizen making the arrest, the person arrested, or both. The appellant was convicted of the two counts of escaping lawful custody.

B. Ontario Court of Appeal (2001), [2001 7279 (ON CA)](https://www.canlii.org/en/on/onca/doc/2001/2001canlii7279/2001canlii7279.html), 204 D.L.R. (4th) 51

19 The Court of Appeal dismissed the appellant’s appeal both on the constitutional issues and against the convictions for escaping lawful custody.

20 The Crown’s appeal of the acquittal on the assault with intent to resist arrest was allowed. In the court’s view, the TPA does include the authority to use reasonable force to arrest and detain the person arrested. The authority is incidental to the statutory power of arrest and does not require separate explicit statutory authority. On this point, R. v. Lerke (1986), 1986 ABCA 15, 24 C.C.C. (3d) 129 (Alta. C.A.), was agreed with.

21 In its reasons, the court referred to the history of the power of arrest at common law. According to W. Holdsworth, A History of English Law (1973), vol. III, 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” (para. 39 (emphasis in original)). The notion of reasonable force and physical restraint was, the court concluded, inherent in a power to arrest.

22 The court rejected the appellant’s argument that the right to use reasonable force is excluded by s. 146 of the Provincial Offences Act, R.S.O. 1990, c. P.33, which protects police officers and others from prosecution when only necessary force is used. The issue here is the scope of the authority, not the scope of the protection. While it is true that both the Fish Inspection Act, R.S.O. 1990, c. F.18, and the Fish and Wildlife Conservation Act, 1997, S.O. 1997, c. 41, provide specifically for the use of force in certain circumstances, the court wrote: “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” (para. 53).

III. Relevant Legislative Provisions

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

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.

(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.

(3) 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.

Interpretation Act, R.S.O. 1990, c. I.11

28. In every Act, unless the contrary intention appears,

(b) where power is given to a person, officer or functionary to do or to enforce the doing of an act or thing, all such powers shall be understood to be also given as are necessary to enable the person, officer or functionary to do or enforce the doing of the act or thing;

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

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.

(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.

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

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.

145. (1) Every one who

(a) escapes from lawful custody, or

is guilty of an indictable offence and liable to imprisonment for a term not exceeding two years or is guilty of an offence punishable on summary conviction.

270. (1) Every one commits an offence who

(b) assaults a person with intent to resist or prevent the lawful arrest or detention of himself or another person; or

(2) Every one who commits an offence under subsection (1) is guilty of

(a) an indictable offence and is liable to imprisonment for a term not exceeding five years; or

(b) an offence punishable on summary conviction.

494. (1) Any one may arrest without warrant

(a) a person whom he finds committing an indictable offence; or

(b) a person who, on reasonable grounds, he believes

(i) has committed a criminal offence, and

(ii) is escaping from and freshly pursued by persons who have lawful authority to arrest that person.

(2) Any one who is

(a) the owner or a person in lawful possession of property, or

(b) a person authorized by the owner or by a person in lawful possession of property,

may arrest without warrant a person whom he finds committing a criminal offence on or in relation to that property.

(3) Any one other than a peace officer who arrests a person without warrant shall forthwith deliver the person to a peace officer.

IV. Analysis

24 This appeal arises in the context of a justifiably frustrated airport authority seeking to control “scooping” activities on its premises which even the appellant concedes are unlawful. Yet the implications of recognizing a power to use force in effecting an arrest under the TPA go far beyond the present context. Countryside ramblers come face to face with farmers. Teenagers occasionally upset mall owners who think adolescents “hanging out” deter business. Drifters seek shelter in railway stations. Protesters march their placards onto the private property of a target business. The list of potential confrontations goes on.

25 In recent years, provincial legislation such as Ontario’s TPA has become the primary legal basis upon which private security firms and the like monitor and control activities on private properties. Intelligarde, one of Ontario’s largest private security firms, estimates that its guards have arrested over 30,000 people in the last 20 years on the basis of the TPA (R. McLeod, Parapolice: A Revolution in the Business of Law Enforcement (2002), at p. 67). G. S. Rigakos writes that “the most well-worn piece of legislation for Intelligarde staff is the Trespass to Property Act. It provides them with broad powers of arrest on private property and is the statute of choice among a litany of provisions making it very easy for private security guards to arrest citizens in Ontario” (The New Parapolice: Risk Markets and Commodified Social Control (2002), at pp. 52-53).

26 The power of arrest is a potent weapon to put in the hands of landowners and occupiers to be wielded in protection of their private property. Whether or not force is used, the liberty of the person arrested is compromised. The TPA states expressly that there is no requirement for a judicial warrant. The right to arrest arises when the occupier has “reasonable and probable grounds” to believe the person arrested is a trespasser (s. 9(1)). The arrested person is then handed over to the police. When so much of the space where the modern community gathers, including airports and shopping malls, is in private hands, there is legitimate controversy about the nature and scope of the occupier’s arrest power (see R. Anand, Task Force on the Law Concerning Trespass to Publicly-Used Property as it Affects Youth and Minorities (1987), at pp. 81 et seq.; P. C. Stenning and C. D. Shearing, Search and Seizure: Powers of Private Security Personnel (1979), at p. 75 (study paper prepared for the Law Reform Commission of Canada)).

27 The decision to grant or withhold the power of arrest is a legislative decision. Absent a Charter challenge, our task is limited to statutory interpretation. The power of arrest is clearly granted to occupiers. We are simply required to determine the content of the legislative grant. Section 9 of the TPA provides, without elaboration, that “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” as a trespasser (emphasis added).

28 The word “arrest” has a well-understood meaning at common law. Unless the context otherwise dictates, I think we are bound to interpret the word as it appears in s. 9 of the TPA in accordance with the common law of arrest. Eccles v. Bourque, 1974 191 (SCC), [1975] 2 S.C.R. 739, raised a similar issue. Police committed a trespass in attempting to make an arrest. They were sued for civil damages. The Court held that, while the Criminal Code power to arrest without a warrant did not include any express authority to trespass, such authority was an incident of arrest at common law (pp. 742-43). So too here, the legislature has used the word “arrest” as a term of art. Otherwise, there is no guidance at all to occupiers about how to “arrest” somebody, let alone what conduct the occupier is permitted and what is not permitted, and conversely, what are the rights of the alleged trespasser.

(a) [Trespass to Property Act](https://www.canlii.org/en/on/laws/stat/rso-1990-c-t21/latest/rso-1990-c-t21.html)

29 First enacted in 1834 as the Act to provide for the Summary Punishment of Petty Trespasses and other offences, S.U.C. 1834, 4 Wm. 4, c. 4, the statute authorized a land owner or his or her agent to apprehend individuals for trespass and deliver them to a Justice of the Peace. The arrest provision (which remained virtually unchanged until 1980) provided that “any person found committing any such trespass as aforesaid may be apprehended without a Warrant, by any Peace Officer, or the owner of the property injured, or the servant or any person authorised by him, and forthwith taken to the nearest Justice of the Peace to be dealt with according to Law” (s. 5 (emphasis added)).

30 In a discussion paper produced in 1979, the Ontario Ministry of the Attorney General argued that the purpose of the TPA was to provide a relatively quick, cheap and intelligible remedy for trespass: Discussion Paper on Occupiers’ Liability and Trespass to Property (1979), at p. 13 (“1979 Discussion Paper”). The TPA, it was noted, did not replace the common law remedies, but gave occupiers additional rights: 1979 Discussion Paper, at p. 13; R. v. Page, [1964] O.J. No. 383 (QL) (H.C.), at para. 6 (“[t]he Petty Trespass Act . . . is a very old statute which gives the occupiers of premises certain additional rights to those enjoyed at common law”).

31 In 1980, the Petty Trespass Act, R.S.O. 1970, c. 347, was reformed and the Occupiers’ Liability Act, S.O. 1980, c. 14, was enacted in order to facilitate prosecutions and increase the protection of interests of rural landowners. In the Ministry of the Attorney General’s 1979 Discussion Paper, at p. 13, the inadequacy of the existing Act from the landowners’ perspective was seen to be threefold:

First, the wording of the existing offence is unclear and, along with other factors, leads to difficulties in prosecution. Second, the law does not deter trespass onto land under cultivation even though significant farm losses are caused by trespassers. Third, the Act does not ensure the privacy of occupiers of land or permit the control of recreational activities.

32 Accordingly, the Trespass to Property Act, 1980, S.O. 1980, c. 15, provides owners or agents of the owners with a number of options. Under the current law, s. 2 makes trespass a provincial offence subject to a fine of up to $2,000. Occupiers may direct persons to leave a property (s. 2(1)(b)), and give notice that further activity or entry onto the property is prohibited either absolutely (s. 3) or within limits (s. 4). More intrusively, as already discussed, occupiers or their agents (and police officers) are empowered to arrest without warrant if on reasonable grounds they believe the individual is trespassing (s. 9). The inconvenience and indignity of being arrested may sometimes be seen as more of a punishment than the amount of the fine ultimately levied. It is equally, on that account, more of a deterrent.

(b) Arrest at Common Law

33 A good starting point is the description of an arrest at common law provided by Lord Diplock in Holgate-Mohammed v. Duke, [1984] A.C. 437 (H.L.), at p. 441:

The word “arrest” . . . is a term of art. First, 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. [Emphasis added.]

See also Murray v. Ministry of Defence, [1988] 1 W.L.R. 692 (H.L.), at p. 699.

34 As will be seen, this common law definition dovetails with the 1834 Act (“taken to the nearest Justice of the Peace”). Section 9(2) now requires the occupier to “give the person arrested into the custody of the police officer”. Both versions presuppose detention and a measure of continuing restraint on liberty between the initiation of the arrest and the delivery of the person arrested to the police. Thus, adapting the incidents of an “arrest” at common law to the legislative grant of a power of arrest in s. 9 of the TPA, the occupier is permitted the means (reasonable force) to fulfill the duty (delivery of the person arrested) to achieve the purpose of the arrest (to terminate the trespass and bring the trespasser to the police to be dealt with according to law).

35 The appellant argues that it is anomalous to allow his liberty to be restrained by arrest and detention when, if he were charged with trespass under s. 2(1) of the TPA and convicted, the only consequence would be a fine of no more than $2,000. There would be no imprisonment. In other words, he says, the processes of the TPA permit a greater interference with his liberty than any possible outcome of a successful prosecution. It cannot be disputed, however, that the legislature has conferred a power of arrest on occupiers, and imposed a duty to deliver the person arrested to the police. A serious interference with personal liberty of a trespasser is thus clearly authorized by the TPA even if he submits, i.e., whether “reasonable force” is used or not. The appellant has abandoned the Charter challenge he advanced in the courts below. We must therefore interpret and apply the TPA as we find it.

(c) The Concept of a Citizen’s Arrest

36 The concept of “arrest” by private citizens is as old as the common law. It predates the rise of the modern police force. Laycraft C.J.A. observed in Lerke, supra, at p. 135:

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”.

37 The “King’s Peace” itself was a concept introduced by the Norman Kings. It required the inhabitants of each community to apprehend all felons, and held them collectively responsible for failing to do so: Statute of Winchester, 13 Edw. 1, Stat. 2 (1285), cc. 1, 2, 4 and 6; J. F. Stephen, A History of the Criminal Law of England (1883), vol. I, at p. 189. At common law, a private citizen had both a right and a positive obligation to perform an arrest when a felony was being committed or had “in fact” been committed: Stephen, supra, at p. 193; W. Hawkins, A Treatise of the Pleas of the Crown (8th ed. 1824), vol. II, c. 9 “Of the Court of the Coroner”, Sect. 6, at p. 74. Things could get quite bloody, as Blackstone recounts:

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 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. [Emphasis in original.]

(W. Blackstone, Commentaries on the Laws of England, Book IV, 1769, at pp. 289-90)

38 Felonies were serious crimes, of course, and the authority and duty of private citizens to arrest for misdemeanours were significantly more limited. In King v. Poe (1866), 15 L.T.R. (N.S.) 37 (Ex.), it is reported at p. 40 that there is no “right to arrest a person . . . of a misdemeanor, where there is no breach of the peace, and where it is not necessary to arrest the offender to prevent the renewal of the act”. Simple trespass did not ordinarily give rise to a breach of the peace, and therefore, at common law, did not ordinarily give rise to a right of arrest: see Frey v. Fedoruk, 1950 24 (SCC), [1950] S.C.R. 517, at p. 520 (where this Court held that clandestine entry onto private property by a “peeping tom” did not constitute a breach of the peace).

39 The airport inspectors, as stated, derive their power to arrest from statute. Powers of arrest have been conferred on ordinary citizens by statute from early times, for example, to arrest for the misdemeanours of “night walking” and “riding armed” (see, e.g., Hawkins, supra, c. 12 “Of Arrests by Private Persons”, Sect. 20, at p. 120, and Sect. 22, at p. 121). The citizen’s power of arrest survives under s. 494 of the Criminal Code (“Cr. C.”). As will be seen, many federal and provincial statutes authorize a citizen’s arrest but few give any explicit guidance about its procedures and consequences. The explanation is that legislators presuppose that the term has a well-known legal significance (i.e., is a term of art) derived from the common law.

40 The development of modern police forces brought about a transfer of law enforcement activities from private citizens to peace officers. But it is the peace officer’s powers which are in a sense derivative from that of the citizen, not the other way around. As the House of Lords commented in Christie v. Leachinsky, [1947] A.C. 573, at p. 591, per Lord Simonds, at common law, “[i]t is to be remembered that the right of the constable in or out of uniform is, except for a circumstance irrelevant to the present discussion, the same as that of every other citizen”. See also R. E. Salhany, Canadian Criminal Procedure (6th ed. (loose-leaf)), at p. 3-8.1.

(d) The Arrest Procedure

41 The TPA does not set out the procedure for arrest. I accept, of course, that statutes which encroach on the liberty of the subject should be construed, where ambiguous, in favour of upholding such liberty: Colet v. The Queen, 1981 11 (SCC), [1981] 1 S.C.R. 2, at p. 10, per Ritchie J. Here, however, the word “arrest” is not ambiguous. It is a term of art. It describes a well-understood legal procedure. The TPA incorporates by reference the incidents of arrest at common law except as modified expressly or by necessary implication.

42 In R. v. Whitfield, 1969 4 (SCC), [1970] S.C.R. 46, this Court adopted, for the purposes of the Criminal Code, the following common law definition of the act of arrest, per Judson J., at p. 48:

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.

This definition was accepted as correct by a unanimous Court in R. v. Latimer, 1997 405 (SCC), [1997] 1 S.C.R. 217, at para. 24, and is not contested by the appellant. What the appellant says, however, is that he was not required by law to acquiesce in the further efforts of the inspector (which the trial judge characterized as reasonable) to hand him over to the police. This argument amounts to an attempted revival of the concept of “symbolic arrest”, i.e., an arrest without constraint or substance, that was made and rejected in Whitfield. There the accused argued that he had never been “custodially arrested” (p. 47) or “taken or captured” (p. 48) by a police officer who knew of an outstanding warrant for the arrest of the accused and spotted him in his car. Grabbing him by the shirt through the car window, the police officer shouted “you are under arrest”. The accused accelerated, broke the officer’s hold on the shirt, and left the scene. Hall J., for the dissenting judges, said that “Parliament must be presumed to have known that the words ‘arrest’ and ‘custody’ are not synonymous” (p. 54), and concluded that the accused should have been charged with avoiding arrest, not escaping lawful custody. The majority disagreed. Judson J., speaking for the majority, explained at p. 48 that:

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. If this accused was arrested, he escaped from lawful custody and is guilty . . . .

43 Distinctions between the concepts of “arrest” and “custody” are made for some purposes in the Criminal Code: see, e.g., Law Reform Commission of Canada, Working Paper 41, Arrest (1985), at p. 30. The appellant now concedes that he was properly convicted of escaping lawful custody, but his idea seems to be that once he is “touched”, as in a children’s game, he is free either to submit or to go his own way. If he leaves, he may be charged with escaping lawful custody, but he says the inspector has no authority to use any degree of force to preserve that lawful custody. This cannot be so. Arrest implies confrontation and confrontation creates a potential for the use of force by one party or the other. In Hussien v. Chong Fook Kam, [1970] A.C. 942 (P.C.), Lord Devlin commented, at p. 947:

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. [Emphasis added.]

44 The touching of the appellant and the door-shoving incident were, from the perspective of the participants, a single continuing event. To say the arrest is initiated by a touch is not to say that the power incidental to arrest is thereby exhausted. The purpose of the arrest (delivery of the accused) remained to be fulfilled. The legislature should not be taken as intending to lay on the occupier a duty of delivery and at the same time impose civil and criminal liability for the use of reasonable force necessary for its fulfilment.

45 In the present case, the two arrests were initiated by words of explanation and a mere “touching”. If touching is sufficient in a particular case to bring about compliance, then touching is all “the force” that is authorized. In Sandon v. Jervis (1859), El. Bl. & El. 942, 120 E.R. 760 (Ex.) (a case considered by Judson J. in Whitfield, supra, at pp. 48-49), it was said, at p. 762, per Pollock C.B., “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”. See also Nicholl v. Darley (1828), 2 Y. & J. 399, 148 E.R. 974 (Ex.), at p. 976: “the slightest touch is an arrest in point of law”. Where a bailiff did not lay hands on the defendant however, there was no arrest. See Genner v. Sparks (1704), 6 Mod. Rep. 173, 87 E.R. 928 (Q.B.), at p. 929: “if here he had but touched the defendant even with the end of his finger, it had been an arrest” (emphasis in original). There is no doubt the appellant understood the significance of the inspector’s touch because, according to the trial judge, he made every effort to avoid being touched.

46 Arrest may also be effected by words and a restraint on liberty which is accompanied by submission. This is how Whitfield was interpreted in Latimer, supra, where the accused, a Saskatchewan farmer, was detained by police on suspicion of terminating the life of his handicapped daughter. The police, for their own reasons, intended to stop short of arresting him and no “words of arrest” were spoken. No force was used. However, the issue, for purposes of s. 9 of the Charter (“arbitrary detention”), was defined by the Court as what the person arrested understood. It was concluded that he submitted to go with the police because he understood that he was under compulsion to do so. There was, in the words of Lamer C.J., a de facto arrest (para. 25). Latimer considered himself deprived of “his liberty to go where he pleases”: Spicer v. Holt, [1977] A.C. 987 (H.L.), at p. 1000.

47 In the present case, however, the appellant certainly did not, in the time-honoured phrase, “resig[n] his personal liberty”: Grainger v. Hill (1838), 4 Bing. (N.C.) 212, 132 E.R. 769, at p. 774, per Bosanquet J. See also Alderich v. Humphrey (1898), 29 O.R. 427 (Div. Ct.), at p. 432, and Higgins v. MacDonald (1928), 1928 531 (BC CA), 50 C.C.C. 353 (B.C.C.A.), at p. 355. Something more than words or a touch was required to secure his compliance. Therefore, in my view, something more was authorized.

48 In summary, the trial judge was correct in holding that in the first two incidents, the appellant was lawfully arrested. In the third incident (during the afternoon of July 25, 1991), when the inspector wound up on the hood of the appellant’s car without touching him, and there was not even the potential for immediate physical restraint, and certainly no submission, there was no arrest.

(e) The Status of the Appellant Between the Act of Arrest and His Expected Delivery to the Police

49 The appellant seeks to compartmentalize the apprehension of an arrested person into distinct and separate stages including detention, arrest, custody and delivery to the police, with different rights and obligations attaching to the inspector and the appellant at the different stages. At para. 197, the trial judge concluded on this point that, once the inspector had “touched” the appellant to make the arrest, he

was not authorized to use force to continue the lawful arrest and custody of the accused. To the extent that he was engaged in doing so, as I have earlier found, the ground transportation inspector was not lawfully executing the arrest of the accused. [Emphasis added.]

The trial judge thus treated the arrest as a “continuing” status and I agree with him. However if, as I conclude below, an occupier is entitled to use reasonable force to initiate the status, then, in my view, it follows from the nature of an arrest that the occupier is entitled to use reasonable force to maintain the status. Once the trespasser is delivered to the police, s. 9(3) of the TPA deems that the officer has made the arrest. At that point, it will be out of the hands of the occupier to determine if the arrest should be maintained or whether lesser measures suffice.

50 In the course of the hearing of this appeal, a conceptual concern was raised as to whether the appellant could be charged both with assault with intent to resist arrest (s. 270(1)(b) Cr. C.) and escaping lawful custody (s. 145(1)(a) Cr. C.). In my view, these charges are not mutually exclusive. The appellant was aware of his arrest and, in shoving the door into the appellant, the appellant was resisting by intentionally assaultive behaviour the continuing state of arrest initiated by the touch: see, e.g., R. v. Platten (2000), 2000 ABPC 11, 258 A.R. 153 (Prov. Ct.), at p. 158 (after lawful arrest, the arrestee pushed and flailed against the officer constituting assault under s. 270(1)(b) Cr. C.)); and R. v. Morris (2001), 2001 ABQB 109, 283 A.R. 272 (Q.B.), at p. 278 (the accused’s acts constituted an attempted assault under s. 270(1)(b) where, after the arrest, he cocked his fist in preparation for hitting the officer). If the appellant had “resigned his liberty” after shoving the door, there would have been no escape from lawful custody. The escape charge was laid under s. 145(1)(a) Cr. C. because the appellant followed up the door-shoving incident with a self-help escape. Equally, in the earlier incident on July 22, there was a self-help escape from custody. But there was no assault on the inspector and thus no charge under s. 270(1)(b).

(f) The Use of Reasonable Force

51 At common law, an interference with the arrested person’s liberty, including the use of force, must be no more than is “reasonably necessary”: Dedman v. The Queen, 1985 41 (SCC), [1985] 2 S.C.R. 2, at p. 35; R. v. Godoy, 1999 709 (SCC), [1999] 1 S.C.R. 311, at para. 22. This limitation was expressed by the Ontario Ministry of the Attorney General in its advice to occupiers in a 1987 publication, This land is whose land? A legal guide to property protection rights, at p. 14:

An occupier will be arresting a trespasser if any actual restraint is imposed on a person’s liberty against that individual’s will.

The restraint may be imposed by the application of reasonable force, or by circumstances that imply the threat of force. In every case, the trespasser should be informed of being under arrest and the reason for the arrest.

This position is consistent with Lerke, supra, at p. 134, and is illustrated by R. v. Cunningham (1979), 1979 2874 (MB COCT), 49 C.C.C. (2d) 390 (Man. Co. Ct.), at p. 396.

52 In Whitfield, supra, Judson J. stated at p. 50: “A police officer has the right to use such force as may be necessary to make an arrest.” (And, it should be added, to continue the state of being under arrest.) The proposition of Judson J. was formulated in terms of the police because that was the situation in Whitfield itself. See also R. v. Tricker (1995), 1995 1268 (ON CA), 96 C.C.C. (3d) 198 (Ont. C.A.), at p. 207, where it was accepted that a police officer is entitled to use reasonable force in making an arrest for a provincial offence under the Highway Traffic Act, R.S.O. 1990, c. H.8. As mentioned, however, the right to use reasonable force attaches at common law to the institution of an arrest, not to the status of the individual making the arrest: see also Lerke, supra, at p. 134, and Halsbury’s Laws of England (4th ed. 1990), vol. II(I), at pp. 524-25.

53 The trial judge acknowledged that a policeman could use reasonable force but concluded that the occupier could not, yet the s. 9 arrest power confers a single power of arrest exercisable by “[a] police officer, or the occupier of premises, or a person authorized by the occupier”. At common law too, as we have seen, the powers of the police grew out of the powers of arrest of the citizen. It would therefore be anomalous if, in the exercise of exactly the same statutory power, reasonable force could be used by the police to maintain the state of arrest, but if the arrest is made by an occupier under precisely the same s. 9(2) power of arrest, there is no such authority. The TPA, like the common law, does not differentiate the power of arrest according to the status of the person exercising it. In fact, the use of force under the TPA has been upheld both when police officers make the arrest (R. v. Ambrose, [1999] O.J. No. 3607 (QL) (C.J.); Spencer v. Pollard (1989), 1989 4219 (ON SC), 68 O.R. (2d) 730 (Dist. Ct.); and Pozniak v. Sault Ste. Marie Police Services Board (2000), 2000 26995 (ON SCDC), 139 O.A.C. 186 (Div. Ct.)), and in the case of arrest by an occupier (Mobarakizadeh v. Viking Rideau Corp., [2001] O.J. No. 5045 (QL) (S.C.J.)).

54 If the law were otherwise, s. 9 of the TPA would have conferred on the occupier a completely symbolic power of arrest. The concept, rejected in Whitfield, would be resuscitated for arrests for provincial offences other than by peace officers. I do not think we should encourage a patchwork of different types of arrest unless the wording of a statute either expressly or by necessary implication requires us to do so.

55 There is no such compelling circumstance here. On the contrary, the result of the appellant’s argument would give trespassers like the appellant the upper hand simply by refusing to submit. They would render wrongful even the most reasonable efforts by the occupier to fulfill the TPA obligation to deliver him or her to the police.

56 The appellant’s strongest argument is the public interest in avoiding physical confrontations between private citizens. However, even on the appellant’s theory, if the trespasser once arrested attempts to flee, the inspector would have a right to use reasonable force to prevent the commission of an indictable offence, namely evading lawful custody. Thus, denying the occupier the right to use reasonable force in making and continuing the arrest does not mean that in the arrest situation no force will be used. So too we must consider the common law powers of physical ejection of a trespasser discussed below. Anomalies as to when reasonable force can and cannot be used are avoided not only by recognition of the incidents of arrest at common law, but also by virtue of s. 28 of the Interpretation Act which provides:

28. In every Act, unless the contrary intention appears,

(b) where power is given to a person, officer or functionary to do or to enforce the doing of an act or thing, all such powers shall be understood to be also given as are necessary to enable the person, officer or functionary to do or enforce the doing of the act or thing; [Emphasis added.]

57 The appellant says that force is not a necessary element of arrest. In Latimer, he says, no force was used yet a de facto arrest resulted. Therefore, he says, s. 28(b) does not apply. The better view, however, is that the ability to use force often provides the necessary precondition to securing the submission of the person arrested. It is therefore necessary to the efficacy of the arrest power, as the facts of this case demonstrate.

58 The anomalies inherent in the appellant’s position can be looked at in another way. It is not contested that an alternative to arrest would have been the forcible ejection of the appellant from the airport property: see Diggs v. Century Investigation and Security Services Inc., [2002] O.J. No. 4251 (QL) (S.C.J.), at para. 62: “In ejecting the trespasser, the occupier or other person with authority may use a reasonable degree of force, so long as he uses no more force than is reasonably necessary”; MacDonald v. Hees (1974), 1974 1289 (NS SC), 46 D.L.R. (3d) 720 (N.S.S.C.); Mullins v. Levenick, [1998] N.B.J. No. 60 (QL) (Q.B.). Ejection by necessary force is a defence now enshrined in s. 41(1) Cr. C. The situation would thus be, on the appellant’s view, that the inspector could have used the force reasonably necessary to escort the appellant off the airport property, but if on their way down the arrivals ramp they met a policeman coming the other way, and the inspector delivered the appellant to the police instead of continuing their walk to the airport perimeter, the forced march, otherwise lawful, would have become assaultive. All would depend on the inspector’s original intent, arrest or ejection. Such distinctions would serve no useful purpose, and should not be presumed to have been intended by the legislature.

59 Where a lawful arrest under the TPA occasions some intentional pushing and shoving, the question is, as the Court of Appeal noted, who should be treated as the wrongdoer, the inspector or the scooper? In my view, the respondent is correct. Providing the force used is no more than is reasonable and necessary, the person undertaking the arrest is acting within the scope of his or her s. 9 authority.

(g) The “Negative Inference” From Other Provincial Legislation

60 Against this general approach to the interpretation of s. 9 of the TPA, the appellant argues that a negative inference should be taken from other Ontario legislation. In particular, the appellant relies on s. 146 of the Provincial Offences Act, which I reproduce for ease of reference:

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.

(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.

61 On the appellant’s reading, the fact that the Provincial Offences Act shields police officers but not private individuals (unless acting at the request of the police for assistance) is “a clear indication” that s. 9 does not authorize citizens to use reasonable force when making an arrest.

62 I agree with the Court of Appeal that such a “negative inference” is not warranted. Sections 146 and 147 of the Provincial Offences Act do not in and of themselves grant authority to the police or to anyone else to use force in making an arrest. Their sole function, as with the parallel provision in s. 25 Cr. C., is to confer a limited immunity: Eccles, supra. An occupier making an arrest under the TPA without meeting the conditions of s. 146 simply proceeds without the benefit of s. 146 protection, and must look to the common law for a “shield”.

63 The appellant also relies on a negative inference from the fact that the use of necessary force is explicitly authorized in the context of arrest in Ontario’s Fish and Wildlife Conservation Act, 1997, s. 93(2) (“A conservation officer may use as much force as is necessary to make an arrest under this section”), and the Fish Inspection Act, s. 7(3) (“An inspector may use as much force as is necessary to make an arrest under subsection (2)”). Both of these provisions were enacted after the date of the trial judgment herein (May 8, 1996) but before the decision of the Ontario Court of Appeal (October 1, 2001). I agree with the Court of Appeal here as well that a negative inference is not justified. The fishing statutes require the arresting official to release the person arrested as soon as practicable, unless a series of conditions are met. The focus is on terminating the activity rather than delivering the arrested individual to the police. For various reasons, therefore, it was apparently thought necessary to spell out the authority to use “necessary” force. Be that as it may, I agree with the Court of Appeal that the fact the legislature chose to put additional detail into fishing laws does not alter the common law content of the word “arrest” incorporated by reference into s. 9 of the TPA.

(h) Other Comparable Provincial Legislation

64 No trespass statute enacted by a Canadian province explicitly authorizes the use of force in making an arrest. Nonetheless, most provincial trespass statutes empower owners (or their agents) and police officers to arrest trespassers. See, e.g., Trespass to Premises Act, R.S.A. 2000, c. T-7, s. 5 (Alberta); Petty Trespasses Act, R.S.M. 1987, c. P50, s. 2 (Manitoba); Petty Trespass Act, R.S.N.L. 1990, c. P-11, s. 4 (Newfoundland and Labrador); Trespass Act, S.N.B. 1983, c. T-11.2, s. 7 (New Brunswick). In none of these provisions is the use of reasonable force mentioned, yet in each case the occupier is under a duty to hand over the person arrested to the police, provincial court judge or justice of the peace. It is that duty, which is itself foreshadowed in the common law, that implies that a reasonable force may be applied to achieve the statutory purpose.

65 Other provinces have rejected the notion of occupier’s arrest, preferring to keep arrest (and the potential use of force) in the hands of the police. Thus, British Columbia’s Trespass Act allows owners to question the trespasser for their identity, but not to arrest them. Only police officers may undertake an arrest: Trespass Act, R.S.B.C. 1996, c. 462, ss. 8-10. Similarly, Nova Scotia and P.E.I.’s trespass statutes only authorize police officers to arrest trespassers: Trespass to Property Act, R.S.P.E.I. 1988, c. T-6, s. 5; Protection of Property Act, R.S.N.S. 1989, c. 363, s. 6. These statutes simply reflect a different legislative approach to the one adopted in Ontario, and may reflect policy concerns similar to those expressed by the trial judge in this case.

(i) Relevant Federal Legislation

66 Over 20 federal statutes authorize some form of “citizen’s” arrest, but only three explicitly authorize the use of force in arresting an individual without a warrant: the Immigration and Refugee Protection Act, S.C. 2001, c. 27, ss. 55 and 138; the National Defence Act, R.S.C. 1985, c. N-5, s. 154 (as amended by R.S.C. 1985, c. 31 (1st Supp.), s. 48), and the Coastal Fisheries Protection Act, R.S.C. 1985, c. C‑33, s. 8 (as amended by S.C. 1999, c. 19, s. 5). The remainder of the federal statutes authorize arrest without reference to the use of force, but require the person arrested to be delivered forthwith to a peace officer in terms similar to s. 9(2) of the TPA.

67 It can thus be seen that it is common practice for both Parliament and the provincial legislatures to use the word “arrest” without further explanation or further qualification in a wide variety of contexts, leaving the incidents (including the use of reasonable force) to be supplied by interpretation acts or the common law.

(j) Policy Arguments

68 The concern expressed by the trial judge about the potential escalation of violence if private occupiers have the right to use force in furtherance of their private interest is a real one, although the emphasis on “private” interest must be qualified by the acknowledgment that the prosecution, if it proceeds, is subject to the control of a Crown Attorney and a fine, if any, is payable to the public purse.

69 The TPA relates to a highly specific and limited offence. The effect of denying the occupier the right to use any degree of force would be to subject him or her to tort claims because of the attempt to deliver the arrested person to the police in compliance with s. 9(2) of the TPA. In the present case, for example, the appellant followed up the door-shoving incident on July 25 with a private assault charge against the inspector. It seems to me that if the legislature considers a matter of sufficient importance to warrant the grant of a special power of arrest, it would not wish, as a matter of policy, to “chill” its exercise by denying any protection to those who exercise it in a reasonable way.

70 The appellant also contends that the legislature could not have intended to escalate a minor provincial offence such as trespass into a major “escape arrest” offence under the Criminal Code. This escalation is not surprising. Firstly, even the appellant now admits that he was properly convicted of escaping lawful custody, which is equally an offence prosecutable by summary conviction or indictment under the Criminal Code. Secondly, the law regards a defiance of lawful authority more seriously than the original offending act in many circumstances, e.g., the sanctions meted out for leaving the scene of an accident. The triggering offence may be quite minor, e.g., careless driving, but if there is an attempt to evade civil or criminal liability, it is the evasion to which the law attaches greater importance. Similarly, the act of resisting lawful arrest or escaping lawful custody can reasonably be seen as more serious than a simple trespass against private property, and the Criminal Code so regards it.

(k) What Level of Force is Reasonable and Justified?

71 Many trespasses are of trivial importance. They are best handled by means short of an arrest. This was recognized in the 1987 Ontario Ministry of the Attorney General’s paper This land is whose land?, supra, at pp. 14-15:

An arrest is a grave imposition on another person’s liberty and should only be attempted if other options prove ineffective. Further, an arrest attempt may lead to a confrontation more serious than the initial offence of trespass, and should be exercised with caution. Excessive force or improper use of the arrest power, may leave the occupier, or a designated agent, open to both criminal charges and civil liability.

72 Individuals who were wrongly arrested, or against whom unreasonable force was used, have successfully pursued prosecutions for assault as well as claims for civil damages against the arresting party. See, e.g., Chopra v. Eaton (T.) Co. (1999), 1999 ABQB 201, 240 A.R. 201 (Q.B.), at para. 147 (private security guard liable in damages for unnecessarily putting store customer in headlock and handcuffing him); Briggs v. Laviolette (1994), 21 C.C.L.T. (2d) 105 (B.C.S.C.) (private citizen liable in damages for bodily injury caused by slapping in face and poking with stick an individual he thought had broken his car window); and R. v. Freake (1990), 85 Nfld. & P.E.I.R. 25 (Nfld. Prov. Ct.) (building owner convicted of assault for using excessive force against 11-year-old suspected trespasser).

73 A certain amount of latitude is permitted to police officers who are under a duty to act and must often react in difficult and exigent circumstances: Cluett v. The Queen, 1985 52 (SCC), [1985] 2 S.C.R. 216, at p. 222; R. v. Biron, 1975 13 (SCC), [1976] 2 S.C.R. 56, at p. 64 (Laskin C.J., dissenting); Besse v. Thom (1979), 1979 2791 (BC SC), 96 D.L.R. (3d) 657 (B.C. Co. Ct.), at p. 667, reversed on other grounds at (1979), 1979 633 (BC CA), 107 D.L.R. (3d) 694 (B.C.C.A.); R. v. Bottrell (1981), 1981 339 (BC CA), 60 C.C.C. (2d) 211 (B.C.C.A.), at p. 218. The same latitude will not necessarily be shown to an occupier who is under no duty to act and who instigates a confrontation with a trespasser.

74 Further, “reasonable force” in the context of the TPA may have to have regard not only to what force is necessary to accomplish the arrest, but also to whether a forcible arrest was in all the circumstances a reasonable course of action in the first place. I say this because determining whether “a defendant who claims to have been enforcing the criminal law is liable in tort necessarily involves taking into account what the criminal law states is or is not justifiable conduct” (emphasis added): G. H. L. Fridman, The Law of Torts in Canada (1989), vol. 1, at p. 70.

75 Justification in the criminal law looks at a broader range of factors than simply the physical force required to restrain a person arrested: see, e.g., R. v. Simpson (1993), 1993 3379 (ON CA), 79 C.C.C. (3d) 482 (Ont. C.A.), in which it was explained per Doherty J.A., at p. 499, that justifiability under s. 25 Cr. C. (and, by extension, s. 146 of the Provincial Offences Act)

depends on a number of factors including the duty being performed, the extent to which some interference with individual liberty is necessitated in order to perform that duty, the importance of the performance of that duty to the public good, the liberty interfered with, and the nature and extent of the interference.

76 This dictum was approved and applied by this Court in Godoy, supra, at para. 18, and is quite consistent, it seems to me, with the advice mentioned earlier in the 1987 Ministry of the Attorney General’s paper This land is whose land?, supra, that an arrest “should only be attempted if other options prove ineffective” (p. 14). It is also consistent with s. 495(2) Cr. C. which provides that a police officer shall not make an arrest (unless a warrant is obtained) with respect to summary conviction (and some other lesser) offences unless it is necessary to do so to establish the identity of the person arrested, to secure or preserve evidence of or relating to the offence, to prevent the continuation or repetition of the offence or the commission of another offence, or to secure the attendance in court of the person arrested. I mention this argument because, in a proper case, it might provide a further constraint in tort on any potential abuse of s. 9. The scope of justification in the context of a TPA arrest will have to await a proper case where an occupier who is sued in tort as a result of a TPA arrest is called upon to demonstrate that the arrest, as well as the force used to effect it, was reasonable in all the circumstances.

(l) Charter Implications

77 As mentioned, the courts below rejected the appellant’s Charter challenge to s. 9 of the TPA based on s. 7 (“fundamental justice”) and s. 9 (“arbitrary detention or imprisonment”). The challenge was not renewed here. On the facts, we are not called on in this case to address the question whether a citizen’s arrest could be construed as state action for purposes of the Charter, as held by the Alberta Court of Appeal in Lerke, supra, at p. 134 and, if so, what consequences might flow from that ruling.

(m) Application to the Facts of this Case

78 The trial judge was under no doubt that arrest was a reasonable course of action on the facts of this case. All other attempts to secure the appellant’s compliance had failed, as the trial judge explained, at para. 154:

While an inspector could swear an information causing the court to summons the alleged offender, such an approach would not satisfactorily address the blatant, ongoing commission of the offence. Likewise, a direction to Mr. Asante-Mensah to leave the property had historically proven to be a meaningless communication. The act of private arrest stops the commission of the offence and prevents its continuation.

79 The appellant now concedes that if the inspector was entitled to use force, then the amount of force applied by the inspector was reasonable.

V. Conclusion

80 In my view, “arrest” in the context of the TPA should be seen as a continuing status initiated by words accompanied by physical touching or submission and ending with delivery to the police, maintained as necessary with a force that is no more than reasonable in all the circumstances. I would therefore dismiss the appeal.

Appeal dismissed.

Solicitors for the appellant: Kelly, Jennings & Lacy, Toronto.

Solicitor for the respondent: Ministry of the Attorney General for Ontario, Toronto.