Legal Authorities

The Constitution Act – The Charter of Rights and Freedoms

Whereas Canada is founded upon principles that recognize the supremacy of God and the rule of law:

1. The Canadian Charter of Rights and Freedoms guarantees the rights and freedoms set out in it subject only to such reasonable limits prescribed by law as can be demonstrably justified in a free and democratic society.
2. Everyone has the following fundamental freedoms:
   • Freedom of conscience and religion
   • Freedom of thought, belief, opinion and expression, including freedom of the press and other media of communication;
   • Freedom of peaceful assembly
3. Every citizen of Canada has the right to vote in an election of members of the House of Commons or of a legislative assembly and to be qualified for membership

6. (1) Every citizen of Canada has the right to enter, remain in and leave Canada:

Rights to move and gain livelihood

1. Every citizen of Canada and every person who has the status of a permanent resident of Canada has the right:
   • to move to and take up residence in any province; and
   • to pursue the gaining of a livelihood in any

Certainly! The excerpt you provided is from the Canadian Charter of Rights and Freedoms, which is a constitutional document in Canada. Let’s break down and elaborate on each key aspect:

1. Guarantee of Rights and Freedoms:
   • The Canadian Charter of Rights and Freedoms ensures certain rights and freedoms for individuals. However, these rights are not absolute and can be limited by law if such limitations are reasonable and justifiable in a free and democratic society.
2. Fundamental Freedoms:
   • The Charter outlines several fundamental freedoms that every person in Canada is entitled to:
     • Freedom of Conscience and Religion: The right to hold and practice any religious beliefs.
     • Freedom of Thought, Belief, Opinion, and Expression: The right to think, believe, and express oneself, including through the press and other forms of media.
     • Freedom of Peaceful Assembly: The right to gather peacefully in groups for various purposes.
3. Right to Vote:
   • Every citizen of Canada has the right to vote in federal (House of Commons) and provincial (legislative assembly) elections. Additionally, individuals have the right to qualify for membership, meaning they can run for elected positions.
4. Mobility Rights:
   • Every citizen of Canada has the right to enter, remain in, and leave the country. Furthermore, citizens and permanent residents have specific mobility rights:
     • Right to Move and Take Up Residence: Citizens and permanent residents can move to and establish residence in any province.
     • Right to Pursue Livelihood: They have the right to pursue employment and gain a livelihood in any part of the country.

In summary, the Charter is a foundational document that ensures certain fundamental freedoms and rights for individuals in Canada, promoting a free and democratic society while recognizing that some limitations may be permissible under certain circumstances.

Limitation

1. The rights specified in subsection (2) are subject to
   • Any laws or practices of general application in force in a province other than those that discriminate among persons primarily on the basis of province of present or previous residence; and
   • Any laws providing for reasonable residency requirements as a qualification for the receipt of publicly provided social

Affirmative action programs

1. Subsections (2) and (3) do not preclude any law, program or activity that has as its object the amelioration in a province of conditions of individuals in that province who are socially or economically disadvantaged if the rate of employment in that province is below the rate of employment in

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

Search or seizure

8. Everyone has the right to be secure against unreasonable search or
9. Everyone has the right not to be arbitrarily detained or
10. Everyone has the right on arrest or detention

1. To be informed promptly of the reasons therefore;
2. To retain and instruct counsel without delay and to be informed of that right; and
3. To have the validity of the detention determined by way of habeas corpus and to be released if the detention is not

1. Right to Be Secure Against Unreasonable Search:
   • As a security guard, it’s crucial to understand that individuals have the right to be secure against searches that are considered unreasonable. This means that searches conducted by security personnel must be reasonable, justified, and conducted within the bounds of the law. It emphasizes the importance of respecting individuals’ privacy and ensuring that searches are proportional to the situation at hand.
2. Right Not to Be Arbitrarily Detained:
   • Security guards should be aware that individuals have the right not to be detained arbitrarily. Detention should have a legal basis and be justifiable. Any detention should be in line with established rules and regulations, and security personnel must have valid reasons for detaining someone.
3. Right on Arrest or Detention:
   • If an individual is arrested or detained, the Canadian Charter of Rights and Freedoms outlines specific rights:
     • Prompt Information of Reasons: Individuals have the right to be informed promptly of the reasons for their arrest or detention. As a security guard, clear communication about the grounds for any action is crucial.
     • Right to Retain and Instruct Counsel: Individuals have the right to retain and instruct counsel without delay. Security personnel should be aware of this right and allow individuals the opportunity to seek legal advice.
     • Habeas Corpus: Individuals have the right to have the validity of their detention determined promptly by way of habeas corpus. This legal remedy ensures that a person’s detention is lawful and just. If the detention is not valid, the person is entitled to be released.

Understanding and respecting these rights is essential for security guards to perform their duties within the framework of the law, ensuring a balance between security measures and the protection of individual rights. It also emphasizes the importance of clear communication and transparency during security-related interactions.

Proceedings in criminal and penal matters

11. Any person charged with an offence has the right

1. To be informed without unreasonable delay of the specific offence;
2. To be tried within a reasonable time;
3. Not to be compelled to be a witness in proceedings against that person in respect of the offence
4. To be presumed innocent until proven guilty according to law in a fair and public hearing by an independent and impartial tribunal
5. Not to be denied reasonable bail without just cause
6. Except in the case of an offence under military law tried before a military tribunal, to the benefit of trial by jury where the maximum punishment for the offence is imprisonment for five years or a more severe punishment;
7. Not to be found guilty on account of any act or omission unless, at the time of the act or omission, it constituted an offence under Canadian or international law or was criminal according to the general principles of law recognized by the community of nations
8. If finally acquitted of the offence, not to be tried for it again and, if finally found guilty and punished for the offence, not to be tried or punished for it again; and
9. If found guilty of the offence and if the punishment for the offence has been varied between the time of commission and the time of sentencing, to the benefit of the lesser

12. Everyone has the right not to be subjected to any cruel and unusual treatment or
13. A witness who testifies in any proceedings has the right not to have any incriminating evidence so given used to incriminate that witness in any other proceedings, except in a prosecution for perjury or for the giving of contradictory
14. (1)  Anyone whose rights or freedoms, as guaranteed by this Charter, have been infringed or denied may apply to a court of competent jurisdiction to obtain such remedy as the court considers appropriate and just in the circumstances.

2. Where, in proceedings under subsection (1), a court concludes that evidence was obtained in a manner that infringed or denied any rights or freedoms guaranteed by this Charter, the evidence shall be excluded if it is established that, having regard to all the circumstances, the admission of it in the proceedings would bring the administration of justice into disrepute.

1. Right to Information:
   • Importance for Security Guards: When involved in an incident, security guards should be aware that individuals charged with an offence have the right to be informed promptly and clearly about the specific offence they are charged with. It emphasizes the need for transparent communication during security-related interactions.
2. Right to a Timely Trial:
   • Importance for Security Guards: Security guards should recognize that individuals have the right to be tried within a reasonable time. This emphasizes the importance of efficient and timely legal processes, and guards should cooperate with law enforcement to ensure the swift handling of cases.
3. Right Not to Be Compelled as a Witness:
   • Importance for Security Guards: Individuals charged with an offence have the right not to be compelled to be a witness against themselves. Security guards should be aware of this right and avoid coercive practices that may infringe on an individual’s right against self-incrimination.
4. Presumption of Innocence:
   • Importance for Security Guards: Guards should recognize that individuals are presumed innocent until proven guilty. This presumption guides the behavior and treatment of individuals during security-related interactions, emphasizing fairness and impartiality.
5. Right to Reasonable Bail:
   • Importance for Security Guards: Guards should be cognizant that individuals have the right not to be denied reasonable bail without just cause. It underscores the need for guards to be aware of legal procedures and not to unduly restrict an individual’s liberty.
6. Right to Trial by Jury:
   • Importance for Security Guards: In cases where the maximum punishment is imprisonment for five years or more, individuals have the right to trial by jury. Guards should respect and facilitate these rights during legal proceedings.
7. Protection Against Double Jeopardy:
   • Importance for Security Guards: Guards should be aware that individuals, if finally acquitted or punished for an offence, should not be tried or punished for the same offence again. This protects against unjust treatment.
8. Protection Against Cruel and Unusual Treatment:
   • Importance for Security Guards: Guards must ensure that individuals are not subjected to any cruel or unusual treatment. This emphasizes the need for professional and humane conduct.
9. Protection for Witnesses:
   • Importance for Security Guards: Witnesses should be assured that their testimony will not be used against them in other proceedings, except in cases of perjury or contradictory statements. This encourages cooperation and truthful testimony.
10. Remedy for Charter Violations:
    • Importance for Security Guards: Individuals whose rights are infringed or denied may seek a remedy from the court. Guards should conduct themselves in a manner that respects individuals’ rights to avoid potential legal issues.
11. Exclusion of Evidence Obtained Unlawfully:
    • Importance for Security Guards: Guards should be aware that evidence obtained unlawfully may be excluded from legal proceedings if its admission would bring the administration of justice into disrepute. This underscores the importance of following legal and ethical practices in obtaining evidence.

Understanding and respecting these rights are essential for security guards to perform their duties within the framework of the law, promoting fairness, justice, and the protection of individual rights.

Case Law

Case law, also known as precedent, comprises a body of legal decisions made by the courts in previous cases. It serves as a set of guidelines and best practices for the legal system, with its significance depending on the court level and its consistency with other established legal standards, such as statutes enacted by parliament and British Common Law.

Case law plays a crucial role in defining standards related to various aspects of the law, including the reasonable use of force, grounds for arrest, and other duties undertaken by individuals, including security guards. It serves as a complementary source of guidance alongside official statutes to help authorities determine the facts and make informed decisions in specific cases.

One fundamental principle in case law is the concept of reasonable actions, which is closely tied to the duty of care. Duty of care is a legal term that stipulates that anyone engaging in activities that could potentially harm others must exercise a reasonable standard of care. For instance, in many situations, security personnel are contracted to maintain a reasonably safe environment in large facilities open to the general public. This creates an implied invitation for people to enter the property for its intended purposes. In cases where there is a significant disruption, whether due to criminal activity or other factors, security personnel are expected to take reasonable steps to restore the premises to a normal and safe state.

Ontario Statute Law and PIPEDA

5.6.1 Handling Information & PIPEDA

(Private Information & Protection of Electronic Documents Act)

This section pertains to the collection, storage, dissemination, and destruction of information, with a focus on procedures and regulations for managing information securely while adhering to the Personal Information Protection and Electronic Documents Act (PIPEDA).

PIPEDA is a federal Canadian law designed to safeguard personal information collected, used, or disclosed in specific situations through electronic means for communication or recording information and transactions. Under PIPEDA:

• Personal Information: Refers to information about an identifiable individual but excludes an employee’s name, title, business address, or telephone number within an organization.
• Record: Encompasses various forms of documentary material, including correspondence, memoranda, books, plans, maps, drawings, photographs, films, sound recordings, and more, regardless of their physical form.

PIPEDA establishes regulations governing the collection, use, and disclosure of personal information, recognizing two key principles:

1. Privacy Rights: Individuals have a right to privacy concerning their personal information.
2. Organizational Needs: Organizations must appropriately collect, use, or disclose personal information while complying with privacy regulations.

This part of the Act applies to all organizations involved in commercial activities that collect, use, or disclose personal information related to individuals. It also covers organizations collecting, using, or disclosing personal information about their employees in connection with federally regulated operations, undertakings, or businesses.

DIVISION 1 – PROTECTION OF PERSONAL INFORMATION

Use without knowledge or consent

1. For the purpose of clause 3 of Schedule 1, and despite the note that accompanies that clause, an organization may, without the knowledge or consent of the individual, use personal information only if
   1. In the course of its activities, the organization becomes aware of information that it has reasonable grounds to believe could be useful in the investigation of a contravention of the laws of Canada, a province or a foreign jurisdiction that has been, is being or is about to be committed, and the information is used for the purpose of investigating that contravention;
   2. It is used for the purpose of acting in respect of an emergency that threatens the life, health or security of an individual;
   3. It is used for statistical, or scholarly study or research, purposes that cannot be achieved without using the information, the information is used in a manner that will ensure its confidentiality, it is impracticable to obtain consent and the organization informs the Commissioner of the use before the information is used;

Disclosure without knowledge or consent

1. For the purpose of clause 3 of Schedule 1, and despite the note that accompanies that clause, an organization may disclose personal information without the knowledge or consent of the individual only if the disclosure is
2. Required to comply with a subpoena or warrant issued or an order made by a court, person or body with jurisdiction to compel the production of information, or to comply with rules of court relating to the production of records
   1. The disclosure is requested for the purpose of enforcing any law of Canada, a province or a foreign jurisdiction, carrying out an investigation relating to the enforcement of any such law or gathering intelligence for the purpose of enforcing any such law, or
   2. The disclosure is requested for the purpose of administering any law of Canada or a Province

Assistance

1. An organization shall assist any individual who informs the organization that they need assistance in preparing a request to the organization (for a copy of their private information held by the organization).

Time limit

1. An organization shall respond to a request with due diligence and in any case not later than thirty days after receipt of the request

28. Every person who knowingly contravenes subsection 8(8) or 1(1) or who obstructs the Commissioner or the Commissioner’s delegate in the investigation of a complaint or in conducting an audit is guilty of

1. An offence  punishable  on  summary  conviction  and  liable  to  a  fine  not  exceeding $10,000 or

1. An indictable offence and liable to a fine not exceeding $100,000.

(1.1) This Part does not apply to any organization in respect of personal health information that it collects uses or discloses.

ELECTRONIC DOCUMENTS

31. (1) Definitions in this subsection apply in this

Data means representations of information or concepts, in any form

Electronic document means data that is recorded or stored on any medium in or by a computer system or other similar device and that can be read or perceived by a person or a computer system or other similar device. It includes a display, print out or other output of that data.

SCHEDULE 1 (Section 5)

5.1.4

Organizations shall implement policies and practices to give effect to the principles, including

1. Implementing procedures to protect personal information
2. Establishing procedures to receive and respond to complaints and inquiries;
3. Training staff and communicating to staff information about the organization’s policies and practices; and
4. Developing information to explain the organization’s policies and

5.2.5

Persons collecting personal information should be able to explain to individuals the purposes for which the information is being collected.

1. Principle 3 — Consent

The knowledge and consent of the individual are required for the collection, use, or disclosure of personal information, except where inappropriate.

Note: In certain circumstances personal information can be collected, used, or disclosed without the knowledge and consent of the individual. For example,

1. Legal, medical,  or  security  reasons  may make  it  impossible  or  impractical  to  seek
2. When information is being collected for the detection and prevention of fraud or for law enforcement, seeking the consent of the individual might defeat the purpose of collecting the
3. Seeking consent may be impossible or inappropriate when the individual is a minor, seriously ill, or mentally

Principle 4 — Limiting Collection

The  collection of personal  information shall  be limited to  that  which is  necessary for the purposes identified by the organization. Information shall be collected by fair and lawful means.

5.4.1 Organizations shall not collect personal information indiscriminately. Both the amount and the type of information collected shall be limited to that which is necessary to fulfil the purposes identified. Organizations shall specify the type of information collected as part of their information-handling policies and practices, in accordance with the openness principle (Clause 4.8).

5.5.2 Organizations should develop guidelines and implement procedures with respect to the retention of personal information. These guidelines should include minimum and maximum retention periods. Personal information that has been used to make a decision about an individual shall be retained long enough to allow the individual access to the information after the decision has been made. An organization may be subject to legislative requirements with respect to retention periods.

5.5.3 Personal information that is no longer required to fulfil  the identified purposes should be destroyed, erased, or made anonymous. Organizations shall develop guidelines and implement procedures to govern the destruction of personal information.

1. Principle 6 — Accuracy

Personal information shall be as accurate, complete, and up-to-date as is necessary for the purposes for which it is to be used.

5.6.2 An organization shall not routinely update personal information, unless such a process is necessary to fulfil the purposes for which the information was collected.

1. Principle 7 — Safeguards

Personal information shall be protected by security safeguards appropriate to the sensitivity of the information.

5.7.1 The security safeguards shall protect personal information against loss or theft, as well as unauthorized access, disclosure, copying, use, or modification. Organizations shall protect personal information regardless of the format in which it is held.

5.7.2 The nature of the safeguards will vary depending on the sensitivity of the information that has been collected, the amount, distribution, and format of the information, and the method of storage. More sensitive information should be safeguarded by a higher level of protection. The concept of sensitivity is discussed in Clause 4.3.4.

5.7.3 The methods of protection should include

1. Physical measures, for example, locked filing cabinets and restricted access to offices
2. Organizational measures, for  example,  security clearances and  limiting access on  a “need-to-know” basis; and
3. Technological measures, for example, the use of passwords and

5.7.4 Organizations shall make their employees aware of the importance of maintaining the confidentiality of personal information.

5.7.5 Care shall be used in the disposal or destruction of personal information, to prevent unauthorized parties from gaining access to the information (see Clause 4.5.3).

5.9 Principle 9 — Individual Access

Upon request, an individual shall be informed of the existence, use, and disclosure of his or her personal information and shall be given access to that information. An individual shall be able to challenge the accuracy and completeness of the information and have it amended as appropriate.

Note: In certain situations, an organization may not be able to provide access to all the personal information it holds about an individual. Exceptions to the access requirement should be limited and specific. The reasons for denying access should be provided to the individual upon request.

Exceptions may include information that is prohibitively costly to provide, information that contains references to other individuals, information that cannot be disclosed for legal, security, or commercial proprietary reasons, and information that is subject to solicitor-client or litigation privilege.

5.10.2 Organizations shall put procedures in place to receive and respond to complaints or inquiries about their policies and practices relating to the handling of personal information. The complaint procedures should be easily accessible and simple to use.

5.6.2 Employment Standards Act, “ESA RSO 2000”

(T.P.A.) Trespass to Property Act Ontario, R.S.O. 1990

All Security Guards should be familiar with the excerpts from the T.P.A. The phrase, “Agent of the Occupier” under the act includes Security Guards who have been contracted by the Owner or Agent of Private Property. We are contracted to protect life, property and minimize liability allowing the facility to operate normally. We are responsible to ensure compliance with the rules and regulations on the property, including laws as well as maintaining order and providing a reasonably safe environment.

You must be familiar with the specific arrest authorities as provided in the act, below:

Section 2,

1. Every person who is not acting under a right or authority conferred by law and who,
   1. without the express permission of the occupier, the proof of which rests on the defendant, (Called a “reverse onus” under the law, meaning it is up to the subject to prove otherwise)
2. enters on premises when entry is prohibited under this Act, or
3. engages in an activity when the activity is prohibited under this Act; or
   1. does not leave the premises immediately after he or she is directed to do so by the occupier of the premises or a person authorized by the occupier, is guilty of an offence and on conviction is liable to a fine of not more than $2000.00

Most trespass issues are best handled by means short of arrest.

You should define any breach of the “Mall Code of Conduct”, describing it as Engaging in Prohibited Activity, or Entry Where Entry is Prohibited, or Refusing to Leave after Directed to do so, if appropriate for an arrest.

Section 9, (1) allows for a police officer or the occupier of the premises, or a person authorized by the occupier (agent-Security Guard) to arrest without warrant any person believed on reasonable grounds to be on the premises in contravention of section 2.

Section 9, (2) provides that you must promptly call for the assistance of a police officer and give the person arrested into their custody.

Trespassing and Prohibited Activities:

1. Entry Without Permission:
   • Unauthorized entry onto premises without express permission is prohibited under the law. The burden of proving permission rests on the individual accused of trespassing.
2. Prohibited Activities:
   • Engaging in activities that are explicitly prohibited under the law without permission is also an offense.
3. Failure to Leave Upon Direction:
   • If an individual fails to leave the premises immediately after being directed to do so by the occupier or an authorized person, it constitutes an offense.
4. Offense and Penalty:
   • Trespassing, engaging in prohibited activities, or refusing to leave when directed can lead to a criminal offense. Upon conviction, the individual may face a fine of up to $2000.00.
5. Handling Trespass Issues:
   • It is emphasized that most trespass issues are ideally addressed through measures short of arrest. This implies that security guards should, whenever possible, employ alternative methods for resolving trespass incidents before resorting to arrest.
6. Mall Code of Conduct:
   • Security guards are advised to define any breach of the “Mall Code of Conduct” as Engaging in Prohibited Activity, Entry Where Entry is Prohibited, or Refusing to Leave after Directed to do so, based on the circumstances. This clarification helps in determining the appropriate action, including a potential arrest.
7. Arrest Authority:
   • Section 9(1) grants the authority to a police officer, the occupier of the premises, or a person authorized by the occupier (such as a security guard) to arrest without a warrant any person reasonably believed to be contravening section 2, which pertains to trespassing.
8. Assistance of Police:
   • Section 9(2) specifies that, upon making an arrest, the security guard must promptly call for the assistance of a police officer and hand over the person arrested into their custody. This ensures that legal procedures are followed and the individual is transferred to appropriate law enforcement authorities.

Understanding and adhering to these legal provisions are crucial for security guards to effectively address trespassing issues while respecting the rights of individuals and following proper legal procedures.

Case Law Specific to Trespass:

R V Asante-Mensah [2003] S.C.J. No.38

This decision traced the legal meaning of “reasonable force” related to a trespass arrest undertaken by private citizens in Ontario. The judge stated, “If the party conducting a legal arrest has no power to employ reasonable force to effect the arrest in the face of unlawful resistance, the law would create a situation in which the party being arrested is free to resist without any fear of reprisal.”

As long as force used is reasonable considering all of the circumstances, then using force to conduct the arrest  is justifiable. This decision also stated clearly that many arrests are so “trivial” in nature that they are best handled by means short of arrest.

This decision is binding on all lower courts in Ontario.

Tucker v. Cadillac Fairview Corp. [2005] O.J. No. 2921

In another decision the court document discusses justifications for trespass arrest in relation to whether an arrest is reasonable in the first place. This decision also takes into account if a defendant is liable in tort (owes a debt in a law suit) according to what the criminal law states is justifiable and is not justifiable conduct.

It is once again reinforced that many trespass offences are of trivial importance and are best handled by means short of arrest. This ruling further reinforces the concepts noted above, as the circumstances in the Asante-Mensah case were extreme and all other attempts to secure the subject’s compliance had failed, therefore arrest was a reasonable course of action.

Reasonable force under the Trespass to Property Act considers not only what force is necessary to accomplish the arrest, but also considering all of the circumstances was arrest a reasonable course of action in the first place?

The judge also asked these fundamental questions regarding the tests if a trespass arrest is reasonable or not:

1. What had the appellants (arrested persons) done to cause the Security Guards to view them as trespassers? Were these activities the subject of a complaint?
2. Were the appellants (arrested persons) acting in a disruptive manner either before their arrest or at the time of their arrest?
3. Had the appellants (arrested persons) previously received a trespass notice? Had they previously been prosecuted for trespassing?
4. Is it likely that the appellants (arrested persons) would have left the mall in a reasonable period of time had Reverend Tucker been given the opportunity to purchase the book that he wished to buy?
5. Once the appellants (arrested persons) were apprehended by the guards, did they offer to wait for a police officer to attend?
6. Was it necessary to arrest the appellants (arrested persons) to prevent them from continuing their prohibited conduct (of soliciting)?
7. Was the arrest of the appellants (arrested persons) necessary to preserve relevant evidence?

If these criteria can be met and the matter could not have been reasonably dealt with by means short of arrest, these dialogues from Judges’ decisions provide strong precedents for trespass arrests that are justified under the circumstances.

Highway Traffic Act

The Highway Traffic Act is another Provincial Statute enforced by Police and specially appointed enforcement officers on public roadways.

Certain traffic offences and driver behaviours are discouraged on private property, particularly if they endanger others, including the driver or occupants of the offending vehicle.

Although the H.T.A. (Highway Traffic Act) is not part of the Ministry mandated curriculum, there are certain specific sections and applications of the regulations that are vital for the security professional.

All Security Guards operating a motor vehicle need to be properly licensed and familiar with the rules of the road that apply to them. A security vehicle does not currently have any emergency vehicle privileges or status and must be operated in accordance with the laws pertaining to all drivers.

All Security Guards working as Certified Contract Officers for the purpose of enforcing Municipal By-Laws on private property need to be familiar with certain definitions provided by the H.T.A.

1. “Park” or “parking”, when prohibited, means the standing of a vehicle, whether occupied or not, except when standing temporarily for the purpose of and while actually engaged in loading or unloading merchandise or
2. “Stand” or “standing”, when prohibited, means the halting of a vehicle, whether occupied or not, except for the purpose of and while actually engaged in receiving or discharging
3. “Stop” or “stopping”, when prohibited, means the halting of a vehicle, even momentarily, whether occupied or not, except when necessary to avoid conflict with other traffic or in compliance with the directions of a police officer or of a traffic control sign or

Most parking infractions on private property are considered trifling or of small importance, in comparison to other offences and the consequences for an infraction or contravention include issuing a certificate of offence with a set fine that may be paid outside of court. Keeping this in mind, most Judges would frown on a Security Guard arresting a person for a parking infraction.

Extreme circumstances such as vehicles blocking a fire route in times of emergency may increase the seriousness of a parking offence.

Unless you are certified to issue parking infraction notices by your municipality, there is little you can do, beyond persuasion to get the public to cooperate with these rules, other than call for the authorities for assistance.

Picking up passenger for compensation prohibited without license, etc.

1. (1) A driver of a motor vehicle other than a bus shall not pick up a passenger for the purpose of transporting him or her for compensation where a license, permit or authorization is required to do so by,
   1. The Public Vehicles Act;
   2. A municipal by-law passed under Part IV of the Municipal Act, 2001;
   3. A regulation made under the Department of Transport Act (Canada); or
   4. An airport or airport authority, except under the authority of such license, permit or

Those working on private property conducting traffic control duties or enforcing rules related to “illegal taxis” or vehicles for hire should be aware of the best practices and consequences, including who may enforce these as set out by the provisions.

The H.T.A. is enforceable by Police or specially appointed officers. This particular contravention under Section 39.1 can result in serious circumstances originating from illegal taxis operating, in the first place. There may be confrontations between the illegal drivers and licensed cabs on your property. In addition, these vehicles are often not properly insured and the drivers may commit other offences or engage in poor practices, resulting in injury or loss to patrons on your protected property.

If this is occurring on your protected property, you may enforce the rules under the authorities of the Trespass to Property Act, if allowed by your policies and appropriate. Most often the offender would be issued a notice prohibiting entry and be asked not to return. The specific authorities are covered in section 4.6.7

Smoke Free Ontario Act

The Smoke Free Ontario Act outlines regulations concerning the sale, acquisition, and usage of tobacco products. Security Guards might be called upon to support the property manager in upholding specific rules that the property owner must adhere to. Please adhere to the policies, protocols, and reasonable/legal instructions provided at your assigned location.

Proprietor obligations

Every proprietor of an enclosed public place or a place or area mentioned in subsection:

SHALL,

1. Ensure compliance with this section with respect to the enclosed public place, place or area;
2. Give notice to each person in the enclosed public place, place or area that smoking is prohibited in the enclosed public place, place or area in accordance with the regulations, if any;
3. Post any prescribed signs prohibiting smoking throughout the enclosed public place, place or area, including washrooms, in the prescribed manner;
4. Ensure that no ashtrays or similar equipment remain in the enclosed public place, place or area, other than a vehicle in which the manufacturer has installed an ashtray;
5. Ensure that a person who refuses to comply with subsection (1) or (2) does not remain in the enclosed public place, place or area; and
6. Ensure compliance with any other prescribed

Definition

(12)    In this section, “proprietor” means the owner, operator or person in charge.

Obstruction

(16) No person shall hinder, obstruct or interfere with an inspector conducting an inspection, refuse to answer questions on matters relevant to the inspection or provide the inspector with information, on matters relevant to the inspection that the person knows to be false or misleading.

The Smoke Free Ontario Act, sets out the standards for restrictions and prohibitions regarding the sale, purchase and use of tobacco products, including age limits, prescribed premises and consequences for contraventions.

It should be apparent from the sections, above that a Security Guard could find they are in the position of proprietor. If you are working in an establishment such as a health care facility, nursing or veterans home or entertainment facility that has an approved designated smoking space or if you are working at a retail establishment that sells tobacco products, it is recommended you obtain a copy of the regulations and become familiar with the specific regulatory obligations.

As the Smoke Free Ontario Act does not have an arrest provision for contraventions yet creates an obligation for the proprietor to cause violators to vacate the property, it is apparent this must be accomplished by means of the Trespass to Property Act or with the assistance of an authority who has powers to enforce the Smoke Free Ontario Act.

Occupier’s Liability Act, R.S.O. 1990

Under the Occupier’s Liability Act, Security Guards are defined as an occupier as they are agents of the Owner/Property Manager and have “responsibility for and control over the condition of premises or the activities there carried on, or control over persons allowed to enter the premises.” This responsibility is set out by our terms of contract and the job function we fulfill.

“Premises” under the act includes not only lands and structures but water, ships and vessels, trailers and portable structures, trains, railway cars, vehicles and aircraft except when in operation (moving).

The Occupier’s Liability Act applies in place of the rules of common law that determine the care the occupier is required to show in respect of dangers to persons entering on the premises and/or property they bring with them. It is the occupier’s duty to take reasonable care that in all in all circumstances that persons entering on the premises and the property brought on the premises by those persons are reasonably safe while there. The duty of care provided under this act applies whether the danger is caused by the condition of the premises or by an activity carried on at the premises.

Municipal By-Laws

The primary legal violations that Security Guards are often responsible for enforcing are related to parking infractions. These can encompass breaches of rules regarding fire lanes, parking spaces designated for individuals with disabilities, loading zones, and other specifically designated areas on private property.

In many cases, Guards assigned to enforce these municipal regulations will undergo specialized training and obtain certification allowing them to issue municipal parking violation notices when necessary. If you do not possess specialized training in parking law enforcement from the municipality where you are employed and it is part of your site’s protocols, please adhere to the site’s policies and procedures as outlined and consult with your Supervisor for further guidance.

The Municipal Code, which is a statute in Ontario, grants municipalities the authority to regulate matters within their jurisdiction. A significant portion of this Code pertains to governance principles and tax collection.

It also encompasses various other responsibilities, including management of highways, creation of by-laws, operation of transportation systems, oversight of structures like buildings, fences, and signs, as well as animal control, among other areas. One aspect where a Security Guard may contribute to enforcement is in matters related to Health, Safety, and Nuisance, which includes regulations concerning issues such as noise. Another area that may require a Security Guard’s attention is the operating hours of retail businesses.

A Security Guard should possess knowledge of the Municipal Code relevant to their specific jurisdiction. It’s essential to recognize that by-laws can vary somewhat from one municipality to another. Since most regulations do not grant Security Guards the authority to enforce these by-laws directly, their role primarily involves observing and identifying violations and subsequently reporting them to the appropriate authority for necessary action. In many cases, this authority would be the client unless there is an imminent threat of harm or urgency involved.

An important aspect for Security Guards to consider involves the maximum capacity restrictions for rooms or venues during public gatherings, as stipulated by the fire code, especially in licensed establishments.

Part 1

Part 2

Part 3

Part 4

Part 5

Part 6

Part 7

Part 8

Part 9

Part 10

Part 11

Part 12

Let’s Summarize

The Canadian legal framework is structured across three main tiers: Federal, Provincial, and Municipal. While this oversimplifies the system, it helps Security Guards gain insight into some of the laws and regulations relevant to their daily responsibilities. This section aims to familiarize participants with the origins of legal authority, as well as provincial and municipal laws and regulations. A deeper exploration of Federal Laws, Court systems, rules of evidence (including the Ontario Evidence Act), and a comprehensive understanding of the entire legal system will be provided in Section Five (5).

Some key things to remember are outlined below

Everyone has the right not to be arbitrarily detained or imprisoned

Arrest or detention

10. Everyone has the right on arrest or detention

or

a) to be informed promptly of the reasons therefor;

b) to retain and instruct counsel without delay and to be informed of that right; and

c) to have the validity of the detention determined by way of habeas corpus and to be released if the detention is not lawful.

Tort Law

Tort Law is often referred to as Common Law.

In common law, assault is the tort of acting intentionally and voluntarily causing the reasonable apprehension of an immediate harmful or offensive contact. Because assault requires intent, it is considered an intentional tort, as opposed to a tort of negligence. Actual ability to carry out the apprehended contact is not necessary: an assault can take place with a toy gun, for example.

In security this could apply to the application of handcuffs to an individual. It is reasonable to assume once a person has been arrested, handcuffs might be applied if the person constitutes a danger to the security guard, himself/herself or the general public at large. It also presumes that once a person is under these conditions (arrest) that the arresting person is responsible for the arrested parties’ health and safety.

Common law defences

80. Every rule and principle of the common law that renders any circumstance a justification or excuse for an act or a defence to a charge continues in force and applies in respect of offences, except in so far as they are altered by or inconsistent with this or any other

Ignorance of the law

81. Ignorance of  the  law  by  a  person  who  commits  an  offence  is  not  an  excuse  for committing the offence

Penalty for false statements

86. Every person who makes an assertion of fact in a statement or entry in a document or form for use under this Act knowing that the assertion is false is guilty of an offence and on conviction is liable to a fine of not more than $2,000.

Contempt

91. (1)  Except as otherwise provided by an Act, every person who commits contempt in the face of a justice of the peace presiding over the Ontario Court of Justice in a proceeding under this Act is on conviction liable to a fine of not more than $1,000 or to imprisonment for a term of not more than thirty days, or to both.

93. In this Part, “parent”, when used with reference to a young person, includes an adult with whom the young person ordinarily resides;

“Young person” means a person who is or, in the absence of evidence to the contrary, appears to be,

1. twelve years of age or more, but
2. under sixteen years of age, and includes a person sixteen years of age or more charged with having committed an offence while he or she was twelve years of age or more but under sixteen years of age

Minimum age

94. No person shall be convicted of an offence committed while he or she was under age twelve

Identity of young person not to be published

99. (1) No person shall publish by any means a report,

1. Of an offence committed or alleged to have been committed by a young person; or
2. Of an offence committed or alleged to have been committed by a young person; or omitted

For the purposes of this section, the word publish means make public

Offence

1. Every person who contravenes subsection (1) and every director, officer or employee of a corporation who authorizes, permits or acquiesces in a contravention of subsection (1) by the corporation is guilty of an offence and is liable on conviction to a fine of not more than $10,000.
2. Subsection (1) does not prohibit the following:
   1. The disclosure of information by the young person
   2. The disclosure of information by the young person’s parent or lawyer, for the purpose of protecting the young person’s identity
   3. The disclosure of information by a police officer, for the purpose of investigating an offence which the young person is suspected of having
   4. The disclosure of information to an insurer, to enable the insurer to investigate a claim arising out of an offence committed or alleged to have been committed by the young person
   5. The disclosure of information in the course of the administration of justice, but not for the purpose of making the information known in the
   6. The disclosure of information by a person or member of a class of persons prescribed by the regulations, for a purpose prescribed by the

Arrest without warrant limited

106. No person shall exercise an authority under this or any other Act to arrest a young person without warrant unless the person has reasonable and probable grounds to believe that it is necessary in the public interest to do so in order to,

1. Establish the young person’s identity; or
2. Prevent the continuation or repetition of an offence that constitutes a serious danger to the young person or to the person or property of

On an application for relief in the nature of certiorari, the Superior Court of Justice shall not grant relief unless the court finds that a substantial wrong or miscarriage of justice has occurred, and the court may amend or validate any decision already made, with effect from such time and on such terms as the court considers

Certiorari is a legal term meaning the higher court sends the lower court an order to send the record of the trial concerned for review by the higher court. This section means that unless there is a serious wrong created by the lower court’s decision, the lower court’s decision will not be reviewed.

142. (1) On application, the Superior Court of Justice may by order grant any relief in respect of a matter arising under this Act that the applicant would be entitled to in an application for an order in the nature of habeas corpus.

Habeas Corpus is a legal action that compels an authority holding someone prisoner to bring them before the courts in order to prove the legality of holding the person prisoner. Habeas corpus has been enshrined in our Charter Rights under Section 10.

VIII ARREST, BAIL AND SEARCH WARRANTS

Arrest without warrant

145. Any person may arrest without warrant a person who he or she has reasonable and probable grounds to believe has committed an offence and is escaping from and freshly pursued by a police officer who has lawful authority to arrest that person, and, where the person who makes the arrest is not a police officer, shall forthwith deliver the person arrested to a police

(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.

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

1. against the police officer making the arrest if he or she believed in good faith and on reasonable and probable grounds that the person arrested was the person named in the warrant or was subject to arrest without warrant under the authority of an Act;
2. Against any person called upon to assist the police officer if such person believed that the police officer had the right to effect the arrest; or
3. Against any person required to detain the prisoner in custody if such person believed the arrest was lawfully

(2) It is the duty of everyone who arrests a person, whether with or without warrant, to give notice to that person, where it is feasible to do so, of the reason for the arrest.

6 Residential Tenancies Act, 1996

Purposes of Act

The purposes of this Act are to provide protection for residential tenants from unlawful rent increases and unlawful evictions, to establish a framework for the regulation of residential rents, to balance the rights and responsibilities of residential landlords and tenants and to provide for the adjudication of disputes and for other processes to informally resolve

“Landlord” includes,

1. the owner of a rental unit or any other person who permits occupancy of a rental unit, other than a tenant who occupies a rental unit in a residential complex and who permits another person to also occupy the unit or any part of the unit,
2. the heirs, assigns, personal representatives and successors in title of a person referred to in clause (a), and
3. a person, other than a tenant occupying a rental unit in a residential complex, who is entitled to possession of the residential complex and who attempts to enforce any of the rights of a landlord under a tenancy agreement or this Act, including the right to collect rent;

Tenancy agreement means a written, oral or implied agreement between a tenant and a landlord for occupancy of a rental unit and includes a licence to occupy a rental unit;

Utilities  means  heat,  electricity  and  water;  “vital  service”  means  hot  or  cold  water,  fuel, electricity, gas or, during the part of each year prescribed by the regulations, heat.

Provincial Offences Act R.S.O 1990

The purpose of the Provincial Offences Act is: to replace the summary conviction procedure for the prosecution of provincial offences, including the provisions adopted by reference to the Criminal Code (Canada), with a procedure that reflects the distinction between provincial offences and criminal offences.

Designation of Provincial Offences Officers

(3) A minister of the Crown may designate in writing any person or class of persons as a provincial offences officer for the purposes of all or any class of offences.R.S.O. 1990, c. P.33, s. 1 (3).

In general, the only time that Security Guards will be engaged in enforcement activities that fall under the Provincial Offences Act is when they are licensed under specified municipalities to assist in the enforcement of Parking Violations.

Residential Tenancies Act, 2006

The purposes of this act are to provide protection for residential tenants from unlawful rent increases and unlawful evictions, to establish a framework for the regulation of residential rents, to balance the rights and responsibilities of residential landlords and tenants and to provide for the adjudication of disputes and for other processes to informally resolve disputes.

LANDLORD AND TENANT RIGHTS LEGISLATION 

Security Guards will generally be involved in securing private property as it relates to commercial or industrial buildings such as malls, office or industrial buildings. However, in some instances security guards may become involved in disputes involving residential issues such as apartment or townhouse issues.

In such instances the landlord, tenant and of course, the security guard may find  themselves governed by Province of Ontario Legislation known as the Residential Tenancies Act, 2006. 

A landlord may only access the property where a tenant is living in circumstances set out in the legislation. Any rules that apply to the landlord obviously also apply to the security guard who is working for the landlord. Therefore the security guard who is providing security to premises where there are residential rental units must ensure that he does not violate the tenant’s rights under residential tenancy law. 

Under certain circumstances (to conduct repairs, to show a property to prospective renters, to carry out agreed upon housecleaning…) a landlord and therefore a security guard may enter upon a tenant’s property. Usually this takes place during agreed upon times or where the tenant has been given at least 24 hours advance notice. 

Under section 26 of the residential Tenancies Act, 2006 a landlord or guard acting under authority of a landlord may enter upon a tenant’s premises “in cases of emergency”. Common sense dictates what constitutes and emergency — burst water pipes, electrical emergencies… 

Landlords and security guards cannot enter tenants’ premises to conduct random inspections or investigations. 

Section 40 of the Residential Tenancies Act, 2006 states that 3 landlord may not, without legal process seize a tenant’s property.

Section 9(1) of the Private Security and Investigate Services Act (PSISA) makes it illegal for a security guard to participate in the eviction of a tenant. 

Trespass to Property Act

Definitions

(1) In this Act,“occupier” includes,

(a) a person who is in physical possession of premises,

or

(b) a person who has responsibility for and control over the condition of premises or the activities there carried on, or control over persons allowed to enter the premises, even if there is more than one occupier of the same premises; (“occupant”)

“premises” means lands and structures, or either of them, and includes, water, ships and vessels, trailers and portable structures designed or used for residence, business or shelter, trains, railway cars, vehicles and aircraft, except while in operation. (“lieux”) R.S.O. 1990, c. T.21, s. 1 (1).

School boards (2) A school board has all the rights and duties of an occupier in respect of its school sites as defined in the Education Act. R.S.O. 1990, c. T.21, s. 1 (2).

Trespass an Offence

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

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

i. without the express permission of the occupier, the proof of which rests on the defendant,

ii. without the express permission of the occupier, the proof of which rests on the defendant,

(b) does not leave the premises immediately after he or she is directed to do so by the occupier of the premises or a person authorized by the occupier, is guilty of an offence and on conviction is liable to a fine of not more than $2,000. R.S.O. 1990, c. T.21, s. 2 (1).

Arrest Without Warrant on Premises

9. (1) A police officer, or the occupier of premises, or a person authorized by the occupier may arrest without warrant any person he or she believes on reasonable and probable grounds to be on the premises in contravention of section 2. R.S.O. 1990, c. T.21, s. 9 (1).

Delivery to police officer

(2) Where the person who makes an arrest under subsection (1) is not a police officer, he or she shall promptly call for the assistance of a police officer and give the person arrested into the custody of the police officer. R.S.O. 1990, c. T.21, s. 9 (2).

Deemed arrest

(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. R.S.O. 1990, c. T.21, s. 9 (3).

A private security guard may arrest a person believed to have committed an offence under this act “on reasonable and probable grounds.” This means that the security guards need not actually find the offence being committed. Rather, the private security guard can act on information provided to him by third parties such as other staff members or members of the public.

An actual definition of the term “reasonable and probable grounds” is not provided under this or any Act. As in the definition of ‘arrest’, interpretations are provided through the recordings of judges rulings in past criminal cases and commonly referred to as case law.

Some interpretation (by example) of this section: ‘enters on premises when entry is prohibited under this Act”:

Example 1: An area of the premises is marked by signs reading: STAFF ONLY. Any unauthorized individual found entering or within such an area can be arrested by a security guard.

Example 2: An individual has been banned from the premises on a previous occasion. That individual has returned to the premises and is observed by private security guards. The banned individual can now be arrested as his re-entry onto the premises has been prohibited by the Act.

As the Act allows for the arrest to be made on “reasonable and probable grounds” the private security guard involved in the arrest need only have knowledge that the banning was in effect. These individuals did not have to be involved in the actual initial banning occurrence. “does not leave the premises immediately after he or she is directed to do so”:

Example 3: Private security guards receive information that an individual has been acting in a manner offensive to guests or staff within the premises. The offensive behavior need not be prohibited by signs or notices. It can include situations of shouting, swearing or threatening behavior. The Act allows private security guards to demand that the offending individual leave the premises and associated grounds. Should the individual not heed these instructions he can be arrested.

To reiterate, this Act allows private security guards to act on “reasonable and probable

grounds”. Therefore they need not have to witness the offence in order to take action. Information provided by witnesses would be sufficient to initiate action.

Security guards may encounter situations in which they need to deal with indictable, summary, or criminal offences. They need to be able to accurately identify and categorize offences when on duty and understand how to perform a citizen’s arrest according to the Criminal Code of Canada.

Tort Law

Tort law refers to that body of the law that will allow an injured person to obtain compensation from the person who caused the injury. It can include assault, battery, false arrest, false imprisonment, nuisance, trespass and intentional infliction of mental distress.

Federal Law

Federal Law governs all of Canada. It is printed in the Criminal Code of Canada, and various federal statutes. i.e. Young Offenders Act, Food and Drug Act, etc.

Provincial & Municipal Law

Provincial Law governs the activities within a province. These laws govern offences not included in Federal statutes, i.e. Highway Traffic Act, Private Investigator and Security Guard Act, etc.

Municipal Law governs the activities within a municipality. These laws are referred to as by-laws, and they control things such as parking, work permits, etc.

Course Content Summary

You will need to be familiar with the following:

• Personal Information Protection and
• Electronics Documents Act (2000 C. 5)
• Employment Standards Act 2000
• Labour Relations Act
• Liquor License Act
• Provincial offences Act
• Residential Tenancies Act
• Trespass to Property Act
• Criminal Code
• Charter of Rights and Freedoms

Instructions

You should review the relevant legislation associated with each section of the program. Personal Information Protection and Electronic Documents Act. (P.I.P.E.D.A.)

PIPEDA

PIPEDA is Federal Legislation that came into effect in 2000. It governs the collection, use and disclosure of personal information in a manner that recognizes the right of privacy of individuals. Personal information may not be disclosed without consent unless it is used:

• on reasonable grounds, for investigation of a crime against the Laws of Canada;
• in respect to an emergency that effects life, health or security of an individual;
• for statistical, scholarly study or research.

Collected information can only be used for the purposes for which it was collected. Companies shall have a Privacy

Policy that specifically deals with the use, storage, and destruction of the personal information it collects:

• It must identify the purpose for which the personal information will be used.
• Employees have the right to review their information and ensure it is correct and up to date.
• Once the information is no longer required, the information shall be destroyed.

Security guards should be aware of the procedures for handling, storing, disseminating and destroying information of a personal nature.

PIPEDA Storage & Destruction

The methods of protection for the safe storage of information should include:

• physical measures (locked filing cabinets and restricted access to offices);
• organizational measures (security clearances and limiting access on a “need-to- know” basis); and
• technological measures (the use of passwords and encryption).

The methods of destroying information should include:

• Personal information that is no longer required to fulfill the identified purposes should be destroyed, erased, or made anonymous.
• Organizations shall develop guidelines and implement procedures to govern the destruction of personal information.

Employment Standard Act 2000 (ESA)

The ESA sets out rights of employees and requirements that apply to employers in most Ontario workplaces. Unionized members should talk to their union reps before contacting the Ministry of Labour if they believe their rights have been violated.

The most commonly used sections are:

• Hours of Work
• Rest periods
• Overtime Pay
• Minimum wage
• Vacation time & Pay
• Public Holidays
• Leave of Absences
• Termination Notice and Pay
• Check the government poster
• ESA Quick Reference Poster

Labour Relations Act 1995

The purpose of the Labour Relations Act is to:

• facilitate collective bargaining between employers and trade unions that are the freely-designated representatives of the employees;
• recognize the importance of workplace parties adapting to change;
• promote flexibility, productivity and employee involvement in the workplace;
• encourage communication between employers and employees in the workplace;
• recognize the importance of economic growth as the foundation for mutually beneficial relations amongst employers, employees and trade unions;
• encourage cooperative participation of employers and trade unions in resolving workplace issues;
• promote the expeditious resolution of workplace disputes.

Liquor License Act (Liquor License Act R.S.O 1990)

The Liquor License Act governs the Sale, Licensing Responsible Use, Offences and Regulations regarding the consumption and sale of Liquor in Ontario.

Relevant sections

These sections are relevant to you. Ensure you are familiar with them

Sale to intoxicated persons

No person shall sell or supply liquor or permit liquor to be sold or supplied to any person who is or appears to be intoxicated. R.S.O. 1990, c. L.19, s. 29.

Rules, persons under 19

No person shall knowingly sell or supply liquor to a person under nineteen years of age. R.S.O. 1990, c. L.19, s. 30 (1).

No person shall sell or supply liquor to a person who appears to be under nineteen years of age. R.S.O. 1990, c. L.19, s. 30 (2).Liquor License Act R.S.O. 1990

Entering premises

No person under nineteen years of age shall enter or remain on premises in which the sale of liquor is authorized if the person knows that a condition of the license or permit for the premises prohibits the entry of persons under nineteen years of age. R.S.O. 1990, c. L.19, s. 30 (10).

Exception to subs

Subsection (10) does not apply to a person eighteen years of age who is employed on premises in which the sale or service of liquor is authorized while the person is on the premises during the course of his or her employment. R.S.O. 1990, c. L.19, s. 30 (11); 2006, c. 34, s. 16 (44).

Unlawful possession or consumption

No person shall have or consume liquor in any place other than, (a) a residence; (b) premises in respect of which a license or permit is issued; or (c) a private place as defined in the regulations. R.S.O. 1990, c. L.19, s. 31 (2).

• Definitions of Offence Classes
• Indictable Offence
• Summary Offence
• Hybrid Class Offence
• Protection of Persons Acting Under Authority
• Excessive Force
• Use of Force to Prevent Commission of Offence
• Duty of Person Arresting
• Self-Defense Against Unprovoked Assault
• Preventing Assault
• Defense of House or Real Property
• Assault
• Mischief
• Arrest Without Warrant
• Possession of Property Obtained by Crime
• Criminal Harassment
• Break and Enter

Definitions of Offence Classes

Indictable Offences

An indictable offence is more serious than a summary conviction offence. Conviction of an indictable offence exposes you to greater penalties.

If you are prosecuted by indictment, you are entitled to trial by jury for most offences. You do not have the right to trial by jury if you are tried by indictment for offences such as Drive Disqualified (i.e., driving while prohibited as a result of a conviction for impaired driving), Theft Under $5,000, Fraud Under $5,000, or Mischief Under $5,000.

Following conviction of an indictable offence, you must wait five years before pardon eligibility.

Summary Conviction Offences

Summary conviction offences encompass the most minor offences in the Criminal Code. Examples are “communicate for the purpose of obtaining the sexual services of a prostitute,” “cause disturbance,” and “harassing telephone calls.”

Unless a different penalty is specified, summary conviction offences are punishable by a fine of up to $5,000 or six months’ jail or both.

Also, if you are convicted of a summary conviction offence as an adult, you are eligible for a pardon three years from the time you complete your sentence

Hybrid Offences

Many offences can be prosecuted either by summary conviction or indictment. The Crown chooses or elects the mode of prosecution. Such offences are referred to as “hybrid” (or “Crown option” or “dual procedure”). Hybrid offences include impaired driving, assault and theft under $5,000.00. Hybrid offences are considered indictable until the Crown makes its election.

Section 494. Arrest Without Warrant: Security Guard’s Authority to Conduct Arrest

(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.

Arrest by owner, etc., of property

(2) Anyone 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.

Delivery to peace officer

1. (3) Anyone other than a peace officer who arrests a person without warrant shall forthwith deliver the person to a peace officer. R.S., c. C-34, s. 449; R.S., c. 2(2nd Supp.), s. 5

Protection of Persons Acting Under Authority

25. (1) Everyone 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.

Idem

(2) Where a person is required or authorized by law to execute a process or to carry out a sentence, that person or any person who assists him is, if that person acts in good faith, justified in executing the process or in carrying out the sentence notwithstanding that the process or sentence is defective or that it was issued or imposed without jurisdiction or in excess of jurisdiction.

When Not Protected

(3) Subject to subsection (4), a person is not justified for the purposes of subsection (1) in using force that is intended or is likely to cause death or grievous bodily harm unless he believes on reasonable grounds that it is necessary for the purpose of preserving himself or anyone under his protection from death or grievous bodily harm.

When Protected

(4) A peace officer who is proceeding lawfully to arrest, with or without warrant, any person for an offence for which that person may be arrested without warrant, and every one lawfully assisting the peace officer, is justified, if the person to be arrested takes flight to avoid arrest, in using as much force as is necessary to prevent the escape by flight, unless the escape can be prevented by reasonable means in a less violent manner. R.S., c.C-34, s.25.

Excessive Force

26. Everyone who is authorized by law to use force is criminally responsible for any excess thereof according to the nature and quality of the act that constitutes the excess. R.S., c.C-34, s.26.

Use of Force to Prevent Commission of Offence

27. Everyone is justified in using as much force as is reasonably necessary

(a) to prevent the commission of an offence

(i) for which, if it were committed, the person who committed it might be arrested without warrant, and

(ii) that would be likely to cause immediate and serious injury to the person or property of any one; or

(b) to prevent anything being done that, on reasonable grounds, he believes would, if it were done, be an offence mentioned in paragraph (a). R.S., c.C-34, s.27.

Duty of Person Arresting

29.

(1) It is the duty of every one who executes a process or warrant to have it with him, where it is feasible to do so, and to produce it when requested to do so.

(2) It is the duty of every one who arrests a person, whether with or without a warrant, to give notice to that person, where it is feasible to do so, of

(a) the process or warrant under which he makes the arrest; or

(b) the reason for the arrest.

(3) Failure to comply with subsection (1) or (2) does not of itself deprive a person who executes a process or warrant, or a person who makes an arrest, or those who assist them, of protection from criminal responsibility. R.S., c.C-34, s.29.

Self-Defense Against Unprovoked Assault

34.

(1) Everyone who is unlawfully assaulted without having provoked the assault is justified in repelling force by force if the force he uses is not intended to cause death or grievous bodily harm and is no more than is necessary to enable him to defend himself.

(2) Everyone who is unlawfully assaulted and who causes death or grievous bodily harm in repelling the assault is justified if

a) he causes it under reasonable apprehension of death or grievous bodily harm from the violence with which the assault was originally made or with which the assailant pursues his purposes; and

b) he believes, on reasonable grounds, that he cannot otherwise preserve himself from death or grievous bodily harm. R.S., 1985, c. C-46, s. 34; 1992, c. 1, s. 60(F).

Preventing Assault

37.

(1) Everyone is justified in using force to defend himself or anyone under his protection from assault, if he uses no more force than is necessary to prevent the assault or the repetition of it.

Extent of Justification

(2) Nothing in this section shall be deemed to justify the willful infliction of any hurt or mischief that is excessive, having regard to the nature of the assault that the force used was intended to prevent. [R.S. c.C-34, s.37.]

Defense of House or Real Property

41. (1) Everyone who is in peaceable possession of a dwelling-house or real property, and every one lawfully assisting him or acting under his authority, is justified in using force to prevent any person from trespassing on the dwelling-house or real property, or to remove a trespasser therefrom, if he uses no more force than is necessary.

Assault by Trespasser

(2) A trespasser who resists an attempt by a person who is in peaceable possession of a dwelling-house or real property, or a person lawfully assisting him or acting under his authority to prevent his entry or to remove him, shall be deemed to commit an assault without justification or provocation. [R.S. c.C-34, s.41.]

Assault

265.

(1) A person commits an assault when

a) without the consent of another person, he applies force intentionally to that other person, directly or indirectly;

b) he attempts or threatens, by an act or a gesture, to apply force to another person, if he has, or causes that other person to believe on reasonable grounds that he has, present ability to effect his purpose; or

c) while openly wearing or carrying a weapon or an imitation thereof, he accosts or impedes another person or begs.

Application

(2) This section applies to all forms of assault, including sexual assault, sexual assault with a weapon, threats to a third party or causing bodily harm and aggravated sexual assault.

Consent

(3) For the purposes of this section, no consent is obtained where the complainant submits or does not resist by reason of:

a) the application of force to the complainant or to a person other than the complainant;

b) threats or fear of the application of force to the complainant or to a person other than the complainant;

c) fraud; or

d) the exercise of authority.

Accused’s Belief as to Consent

(4) Where an accused alleges that he believed that the complainant consented to the conduct that is the subject-matter of the charge, a judge, if satisfied that there is sufficient evidence and that, if believed by the jury, the evidence would constitute a defence, shall instruct the jury, when reviewing all the evidence relating to the determination of the honesty of the accused’s belief, to consider the presence or absence of reasonable grounds for that belief. R.S., c. C-34, s. 244; 1974-75- 76, c. 93, s. 21; 1980-81- 82-83, c. 125, s. 19.

Mischief

S. 430.

(1) Every one commits mischief who willfully:

a) destroys or damages property;

b) renders property dangerous, useless, inoperative or ineffective;

c) obstructs, interrupts or interferes with the lawful use, enjoyment or operation of property; or

d) obstructs, interrupts or interferes with any person in the lawful use, enjoyment or operation of property.

Mischief in relation to data

(1.1) Every one commits mischief who willfully:

a) destroys or alters data;

b) renders data meaningless, useless or ineffective;

c) obstructs, interrupts or interferes with the lawful use of data; or

d) obstructs, interrupts or interferes with any person in the lawful use of data or denies access to data to any person who is entitled to access thereto.

Punishment

(2) Everyone who commits mischief that causes actual danger to life is guilty of an indictable offence and liable to imprisonment for life.

Possession of Property Obtained by Crime

S. 354.

(1) Everyone commits an offence who has in his possession any property or thing or any proceeds of any property or thing knowing that all or part of the property or thing or of the proceeds was obtained by or derived directly or indirectly from:

a) the commission in Canada of an offence punishable by indictment; or

b) an act or omission anywhere that, if it had occurred in Canada, would have constituted an offence punishable by indictment.

S. 355.

Everyone who commits an offence under

section 354:

a) is guilty of an indictable offence and liable to imprisonment for a term not exceeding ten years, where the subject-matter of the offence is a testamentary instrument or the value of the subject-matter of the offence exceeds five thousand dollars; or

b) is guilty

i. of an indictable offence and is liable to imprisonment for a term not exceeding two years, or

ii. of an offence punishable on summary conviction, where the value of the subject- matter of the offence does not exceed five thousand dollars. R.S., 1985, c. C-46, s. 355; R.S., 1985, c. 27 (1st Supp.), s. 49; 1994, c. 44, s. 21.

Breaking and Entering with Intent, Committing Offence or Breaking Out

S. 348.

(1) Everyone who:

a) breaks and enters a place with intent to commit an indictable offence therein,

b) breaks and enters a place and commits an indictable offence therein, or

c) breaks out of a place after

(i) committing an indictable offence therein, or

(ii) entering the place with intent to commit an indictable offence therein, is guilty

d) if the offence is committed in relation to a dwelling- house, of an indictable offence and liable to imprisonment for life, and

e) if the offence is committed in relation to a place other than a dwelling-house, of an indictable offence and liable to imprisonment for a term not exceeding ten years or of an offence punishable on summary conviction.

Criminal Harassment

S. 264.

(1) No person shall, without lawful authority and knowing that another person is harassed or recklessly as to whether the other is harassed, engage in conduct referred to in subsection (2) that causes that other person reasonable, in all circumstances, to fear for their safety or the safety of anyone known to them.

(2) Prohibited conduct – The conduct mentioned in subsection (1) consists of

a) repeatedly following from place to place the other person or anyone known to them:

b) repeatedly communicating with, either directly or indirectly, the other person or anyone known to them;

c) besetting or watching the dwelling-house, or place where the other person, or anyone known to them, resides, works, carries on a business or happens to be;

d) engaging in threatening conduct directed at the other person or any member of their family.

(3) Punishment – Every person who contravenes this section is guilty of

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

or b) an offence punishable on summary conviction

Causing Disturbance, Indecent Exhibition, Loitering, etc. S. 175

(1) Everyone who:

a) not being in a dwelling-house, causes a disturbance in or near a public place,

i. by fighting, screaming, shouting, swearing, singing or using insulting or obscene language,

ii. by being drunk, or

iii. by impeding or molesting other persons,

b) openly exposes or exhibits an indecent exhibition in a public place,

c) loiters in a public place and in any way obstructs persons who are in that place, or

d) disturbs the peace and quiet of the occupants of a dwelling-house by discharging firearms or by other disorderly conduct in a public place or who, not being an occupant of a dwelling-house comprised in a particular building or structure, disturbs the peace and quiet of the occupants of a dwelling-house comprised in the building or structure by discharging firearms or by other disorderly conduct in any part of a building or structure to which, at the time of such conduct, the occupants of two or more dwelling-houses comprised in the building or structure have access as of right or by invitation, express or implied, is guilty of an offence punishable on summary conviction.