Karook v. La Reine, 2001 CanLII 25152 (QC C.S.)
24 There are two schools of thought. Three decided cases have concluded that the arrest of a citizen by another citizen is a governmental function to which the Charter applies and thus a search incident to the arrest must comply with Section 8 of the Charter.
25 This position is far from unanimous since recently the British Columbia Court of Appeal in the case of R. vs. J. came to the opposite conclusion.
26 It was held here that when an arrest is made by a person other than a peace officer, he or she is not required to give the accused the requisite Charter warnings. The Ontario Court of Appeal also supported this theory in the case of R. vs. Shafie.
27 In the case of Terry vs. R., the Supreme Court decided in a murder case that evidence obtained in the United States by Canadian Police was not subject to the Canadian Charter of rights.
28 Other cases state that the Charter does not apply to private investigation when the Police is not involved.
29 Therefore it appears that this second theory is supported by a majority of case;
30 Canadian Case Law favors the position that the Charter does not apply to citizen's arrest before the Police becomes-involved.
31 The position chosen has important consequences since without Charter warnings, in case of detention or arrest, if the accused is not advised of this constitutional rights such as right to keep silent and to a lawyer, the evidence obtained against him, could be excluded under Section 24(2) of the Charter.
32 However this exclusion is not automatic. Section 24(2) of the Charter states that evidence obtained in violation of Charter rights may be if it is established it would bring disrepute to the administration of justice.
33 My reading of the Law relating to Citizen's arrest according to the leading cases, is that the Charter does not apply. Therefore, appellant cannot invoke this argument against his original detention by private citizens. This right is limited to two situations; when the citizen sees the commission of a criminal offence (flagrante delicto) or in a case of hot pursuit after an offence is committed. For example, security guards who are not peace officers, cannot arrest without a warrant a person suspected of an offence under Section 364 Cr. C. because it is an offence only punishable by summary conviction.
34 A recent Quebec Court of Appeal decision, involving impaired driving falls exactly on point here. In this case, Military policeman, who were not within their territorial jurisdiction, arrested an accused who was driving a car with the usual symptoms of a person whose faculties were impaired by alcohol or drugs.
35 The Court came to the conclusion that although they did not possess the power to intercept the car, once this was done, as private citizens having seen the erratic driving of the accused and his state which would lead reasonable person to believe he was committing an impaired driving offence. The detention and arrest were therefore considered legal and justified.
36 This is the same situation as in the present case, which leads to conclude that the witnesses had the right here to perform a citizen's arrest, under Section 494 Cr. C.; in reality here, they detained him but did not arrest him.
37 Section 494 Cr. Code limits the powers of arrest of a private citizen to two cases: when he or she is a witness to the commission of a criminal offence (flagrante delicto) or participates when the hot pursuit of a person is being made by persons who have the right to arrest him or her.
38 The private citizen can use reasonable force to arrest a person in the two cases mentioned in Section 494 Cr. C. according to Section 25(1) of the Charter but he can also use reasonable force under Section 30 to detain, prevent a violation of the public peace until the Police arrives to take charge of the accused.
39 In the present case there is no evidence that force or excessive force was used to detain the Appellant.
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