R. v. Asante-Mensah

R. v. Asante-Mensah
Collection
Supreme Court Judgments
Date
2003-07-11
Neutral citation
2003 SCC 38
Report
[2003] 2 SCR 3
Case number
28867
Judges
McLachlin, Beverley; Gonthier, Charles Doherty; Iacobucci, Frank; Major, John C.; Bastarache, Michel; Binnie, William Ian Corneil; Arbour, Louise; LeBel, Louis; Deschamps, Marie
On appeal from
Ontario
Subjects
Property law
Notes
SCC Case Information: 28867
Decision Content
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), 24 C.C.C. (3d) 129; Eccles v. Bourque, [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] S.C.R. 517; Christie v. Leachinsky, [1947] A.C. 573; Colet v. The Queen, [1981] 1 S.C.R. 2; R. v. Whitfield, [1970] S.C.R. 46; R. v. Latimer, [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), 50 C.C.C. 353; R. v. Platten (2000), 258 A.R. 153; R. v. Morris (2001), 283 A.R. 272; Dedman v. The Queen, [1985] 2 S.C.R. 2; R. v. Godoy, [1999] 1 S.C.R. 311; R. v. Cunningham (1979), 49 C.C.C. (2d) 390; R. v. Tricker (1995), 96 C.C.C. (3d) 198; R. v. Ambrose, [1999] O.J. No. 3607 (QL); Spencer v. Pollard (1989), 68 O.R. (2d) 730; Pozniak v. Sault Ste. Marie Police Services Board (2000), 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), 46 D.L.R. (3d) 720; Mullins v. Levenick, [1998] N.B.J. No. 60 (QL); Chopra v. Eaton (T.) Co. (1999), 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] 2 S.C.R. 216; R. v. Biron, [1976] 2 S.C.R. 56; Besse v. Thom (1979), 96 D.L.R. (3d) 657, rev’d (1979), 107 D.L.R. (3d) 694; R. v. Bottrell (1981), 60 C.C.C. (2d) 211; R. v. Simpson (1993), 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), 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), 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), 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), 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, [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
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] 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] 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, [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