Members of the committee, thank you for this opportunity to speak to you today on these proposed amendments to the Criminal Code. I understand I only have a limited amount of time, so I'll make my comments as brief and to the point as possible. That's going to be difficult, given that I'm an academic, but I'll do the best I can.
I appear before you today as an independent scholar and as a member of the Canadian academy who has been studying public and private policing for almost two decades. In the limited time I have, I'm going to focus my attention on the proposed changes to the Criminal Code dealing with a private citizen's power of arrest and, more specifically, paragraph 494(2)(b), which will allow private citizens to make an arrest within a reasonable amount of time after the offence is committed if they believe on reasonable grounds it is not feasible in the circumstances for a peace officer to make the arrest.
I think the changes proposed in Bill C-26 amalgamating a series of awkwardly worded sections relating to defence of property and self-defence make sense and clarify what was already present in the Criminal Code, so I have nothing to add here.
I want to speak to you today about what I consider to be two problematic assumptions that seem to underpin the proposed changes to section 494, and then employ three scenarios to illustrate my reservations about these proposed amendments. I will then sum up with a recommendation.
There are two problematic working assumptions about the proposed changes I'd like to speak to directly. The first is that Bill C-26 is designed to help small store owners like David Chen. The second is that the private security industry is in need of clearer and more expansive arrest provisions in order to do an effective job, and that these proposed changes are in any case simply enshrining legislatively what is already common practice in an increasing challenging security environment. Let me deal with these each in turn.
Bill C-26, in my opinion, will rarely help small store owners like David Chen. Instead, it will almost exclusively benefit the private security industry. With respect to the beneficiaries of these proposed changes, I want to make it clear to the committee that the private security sector will not only be the primary beneficiary of these changes but in practical terms will likely be the only beneficiary. Quite simply, non-security employees rarely, if ever, make arrests. They don't have the know-how. They don't have the confidence.
Unfortunately, there is an absence of available statistics on who makes citizens' arrests, but I would be very surprised, from all of my experience, if even 1% of all such arrests across Canada on an annual basis were attempted by non-security personnel. In fact, to satisfy my own personal curiosity over the years—because I always do a lecture on the division between public and private powers of arrest—I asked my students how many of them had ever conducted a citizen's arrest. These are all policing students in policing classes, so you'd think they'd be a biased sample and more likely than most to do it. Over the last ten years or so, of 500-plus students, only one had made a bona fide citizen's arrest that was not related to their employment in some form. Many of them had made private citizens' arrests, but as agents of the landowner.
Associated with the belief that this bill would aid small store owners, proprietors of businesses, and landowners is the idea that police often charge private citizens if they have not effected an arrest "just right", and that, moreover, these private citizens are subject to considerable judicial scrutiny and will be held to account for a poorly executed arrest. The overwhelming predominance of case law, including that of the David Chen case, as it turns out, points to the opposite reality. The judiciary has bent over backwards to accommodate private citizens' arrests and has, except in the most extreme cases, done everything it can to allow arrests to stand even though they were likely unconstitutional.
Moreover, judges are quite likely to admit evidence collected thereafter, lest not doing so would bring the administration of justice into disrepute. Therefore it's important to keep in mind that these proposed changes should be more accurately understood, for all practical purposes, not as private citizens' powers of arrest but rather as private security officers' powers of arrest. That's my first point.
My second point is the private security industry does not need more expansive arrest powers. As the committee has surely heard by now, private security personnel outnumber the police by at least two to one in Canada, and, depending on how one calculates the numbers, that ratio could be as high as three to one. Criminological research since about the mid-eighties has pointed to the dramatic rise of private security employment across the globe. The trend line for Canada points to a crossover point somewhere between 1968 to 1971 when the private sector was at par with police employment and then began to overtake it.
Since then, not only has the relationship between the public and private sectors transformed quantitatively by virtue of ever-growing demand for private security personnel, but I think it has also transformed qualitatively with respect to what the private security now takes on and how closely interlinked it is with public policing compared to the 1960s. This growth and increasing overlap in function has happened without any significant change to the Criminal Code. Thus, I think the strongest case against any perceived need to expand the arrest provisions in the Criminal Code is precisely the success of the private security sector without them.
The second-strongest case against the perceived need to expand private citizen arrest provisions in the Criminal Code is the increasing and unchecked functional interrelationship between the public and private sectors. When I first started doing research on public and private policing in the early 1990s, you would be hard-pressed to find a single police executive who would publicly endorse closer ties with the private security sector. It seemed that it would bias the police or would undermine their appearance as neutral arbiters of the law. Today these connections are not only endorsed but have also become institutionalized in areas as disparate as public foot patrol, forensic accounting and fraud investigation, and even major event coordination and planning such as the recent G-20 in Toronto.
The Canadian public needs to take stock of these important alterations in private security provision before the Criminal Code is amended to legally enshrine what amounts to a significant expansion of private security guards' powers of arrest.
Let me now turn to a couple of scenarios that will illustrate my concern about what these amendments might mean.
Within the language of the current bill, it's quite likely that there will be many instances when various types of private security personnel, including nightclub bouncers, by the way, will delay arresting someone they find committing a criminal offence in relation to the property they are hired to guard. The reasons for the delay may vary, but they will most likely revolve around some resourcing concerns and the availability and responsiveness of the police. The bill, as it stands, does not stipulate what would be acceptable as a rationale for not arresting immediately, only that the private security guard may arrest at a reasonably later time.
Let's look at the first scenario. A person is wanted by the policy because a warrant has been issued for their arrest. The wanted man then proceeds to steal an item from a mall vendor. A mall security guard, having witnessed the incident and having reported the suspect's image on CCTV, decides to make an arrest at a later, more convenient date. In this scenario, by virtue of bestowing discretionary authority to the private security guard, we may have stunted a police manhunt.
Scenario two: A nightclub bouncer witnesses a criminal act but is unable to make an arrest because the drunken patron has fled the scene. By the way, this is not uncommon, especially in Halifax. Bouncers see the people they have just wrestled with the previous night at the mall the next day. In any case, the nightclub owner prefers his door staff to refrain from making arrests lest they be taken out of service in dealing with the police. The following morning, possibly only half a day after the original incident, the same nightclub bouncer sees the now sober man getting into his car in an underground garage where there is no cellphone reception. Based on the language of the bill, the off-duty bouncer, fearing the man will get away, and that it's not feasible for a peace officer to make an arrest, is within his right to make a citizen's arrest far removed from the original site of the incident and for what may have been a minor summary conviction offence.
Scenario three: A security company, alerted to a spate of recent thefts from a client's warehouse, sets up a sting operation using secret cameras, tagged merchandise, recording devices, and even the screened presence of security agents observing ongoing thefts. None of the company employees recorded stealing materials are arrested immediately. A few weeks later, having gathered all of the video evidence and drafted signed statements from observing guards, the client invites all of the workers to a meeting and conducts a mass arrest. They then alert the police, turn over all of the evidence and a van-load of handcuffed suspects.
My argument to the committee is that all of these scenarios would be legal and not unlikely, given the state of private security innovation and entrepreneurship, and given the language of the proposed amendments for section 494 of the Criminal Code. But note what's happened here. Not only are private security companies acting precisely like public police services, using discretion, conducting investigations, and then turning over evidence to a peace officer on a silver platter, but, by virtue of their ability to delay arrest for a more convenient time, private security guards are always on duty. They are, for all intents and purposes, acting like private police officers. Their authority is tantamount to that of a peace officer once they believe they have witnessed a criminal offence while guarding private property.
BillC-26 therefore will create de facto private police officers, not in name, but in function, as they will use discretion, investigate, and build a case based on their new-found authority to delay arrest. I'm quite confident that this is not the intent of the committee.
It is therefore my recommendation to the committee that the proposed sections of the bill dealing with defence of property be adopted as written, but that proposed amendments to section 494 be dropped, and that for the time being, the original language of this section be retained.