27. Arrest by peace officer of person whom he finds committing offence. Every peace officer is justified in arresting without warrant any person whom he finds committing any offence. 28. Arrest of person found committing any offence at night. – Every one is justified in arresting without warrant any person whom he finds by night committing any offence. 2. Every peace officer is justified in arresting without warrant any person whom he finds lying or loitering in any highway, yard or other place by night, and whom he has good cause to suspect of having committed or being about to commit any offence for which an offender may be arrested without warrant. Under Article 3 (q.) night or night time is the interval between nine o'clock in the afternoon and six o'clock in the forenoon of the following day. 29. Arrest during flight.-Every one is protected from criminal responsibility for arresting without warrant any person whom he, on reasonable and probable grounds, believes to have committed an offence and to be escaping from and to be freshly pursued by those whom he, on reasonable and probable grounds, believes to have lawful authority to arrest that person for such offence. It will be noticed that in some of the foregoing articles the word "justified" is used, while in others the words used are protected from criminal responsibility." The different meanings intended to be conveyed by these two expressions are explained in the following extract, bearing on the subject, taken from the report of the English Commissionners: There is a difference in the " "1 language used in the sections in this part which probably requires explana"tion. Sometimes it is said that the person doing an act is justified' in so "doing under particular circumstances. The effect of an enactment using that "word would be not only to relieve him from punishment, but also to afford him "a statuta ble defence against a civil action for what he had done. Sometimes "it is said that the person doing an act is protected from criminal responsibility under particular circumstances. The effect of an enactment using "this language is to relieve him from punishment, but to leave his liability to "an action for damages to be determined on other grounds, the enactment "neither giving a defence to such an action where it does not exist, nor taking it "away where it does. This difference is rendered necessary by the proposed "abolition of the distinction between felony and misdemeanor. We think that "in all cases where it is the duty of a peace officer to arrest, (as it is in cases of felony), it is proper that he should be protected, as he is now, from civil as well as from criminal responsibility. And as it is proposed to abolish the distinction between felony and misdemeanor on which most of the existing 44 64 64 law as to arresting without a warrant depends, we think it is necessary to give a new protection from all liability (both civil and criminal) for arrest in those cases which by the scheme of the Draft Code are (so far as the power of “arrest is concerned) substituted for felonies. In those cases therefore which are provided for in," (Here are mentioned the number of sections of the English Code which are identical with articles 22, 23, 24, 27, 28 of our Code),"the word justified' is used. A private person is by the existing law protected from civil responsibility for arresting without warrant a person who is on "reasonable grounds believed to have committed a felony, provided a felony has "actually been committed, but not otherwise. In section 35,"-(identical with our article 25)," providing an equivalent for this law, the word used is justified. On the other hand, where we suggest an enactment which extends "the existing law for the purpose of protecting the person from criminal pro 44 46 44 ceedings, we have not thought it right that it should deprive the person 64 "injured of his right to damages. And in cases in which it is doubtful whether "the enactment extends the existing law or not, we have thought it better not 46 to prejudice the decision of the civil courts by the language used. In cases therefore such as those dealt with by,"-(Here are mentioned the numbers of "sections of the English Code which are identical with Articles 19, 20, 21, 26, 29, 36, 37 of our Code),-" we have used the words 'protected from criminal responsibility. 999 POWERS OF ARREST BY PEACE OFFICER AND BY PRIVATE PERSON CONTRASTED. With regard to a peace officer's powers, the effect of Articles 22, 27 and 28 seems to be that he will be justified (that is relieved from civil as well as criminal responsibility), in making an arrest without warrant in any of the following cases: 1. When he believes, on reasonable and probable grounds, that an offence for which an arrest without warrant may be made has been committed, and that the person whom he arrests has committed it, whether it turns out that such offence has been actually committed or not. and whether the person so arrested be guilty or not. 2. When the person whom he arrests is found, by the peace officer himself, in the act of committing any offence whatever. 3. When the person whom he arrests is found by the peace officer lying or loitering in any highway, yard or othor place, by night, and he has good cause to suspect the person, so found by him, of having committed or being about to commit any offence for which an offender may be arrested without warrant, that is to say any of the offences enumerated in Article 552, sub-section 1, and alphabetically arranged under Article 26. 4. When the person whom he arrests is found committing any offence enumerated in sub-section 2 of Article 552, which offences, arranged alphabetically, are as follows: Attempting to injure or poison cattle, (Article 500). Cruelty to animals, (Article 512). Cutting booms, or breaking loose rafts or cribs of timber, (Article 497). Exporting counterfeit coin, (Article 465). Keeping cock-pit, (Article 513). Obtaining by false pretense, (Article 359). Obtaining execution of valuable securities by false pretense, (Article 360). Possessing counterfeit foreign gold or silver coin, (Article 473). With regard to a private individual the effect of Articles 23, 24, 25 and 28 is that he will be justified (that is, relieved from civil and criminal responsibility), in any of the following cases: 1. În assisting,—when called upon,-a peace officer in arresting any person suspected of having committed an offence for which an offender may be arrested without warrant, provided he knows that the person calling for his assistance is a peace officer, and provided also that he is not aware of there being no reasonable grounds for suspecting the person sought to be arrested. 2. In arresting without warrant any one whom he himself finds at any time (day or night) committing any offence for which an offender may be arrested without warrant. 3. In making an arrest, without warrant, of any one whom on reasonable and probable grounds he believes guilty of any offence for which an offender may be arrested without warrant, whether such person is guilty or not; provided, however, that such offence has been actually committed by some one. 4. In arresting without warrant any one whom he himself actually finds, by night, committing any offence whatever. Under Articles 26 and 29 a private individual is protected from criminal responsibility, but not from civil liability in any of the following cases: I. In making an arrest without warrant of any one whom, on reasonable and probable grounds, he believes he finds committing by night any offence for which an offender may he arrested without warrant. 2. In arresting, without warrant, any one whom, on reasonable and probable. grounds, he believes to have committed an offence and to be escaping from and to freshly pursued by those whom he, on reasonable and probable grounds, believes to be lawfully authorized to arrest that person for that offence. Under Article 552, sub-sections 5 and 6, an arrest, without warrant, may also be made in the following cases (a) Any one found committing any offence against the Code upon any property may be arrested by the owner of such property or by any person authorized by such owner; and (b) any one found committing any of the offences mentioned in section 119, (conveying intoxicating liquor on board any of Her Majesty's ships, etc., etc.), may be arrested by certain officers, petty officers and non-commissioned officers. It will be seen, therefore, that, on the one hand, a peace officer arresting without warrant a person whom he suspects on reasonable grounds of having committed one of the offences enumerated in Article 552, sub-section 1, will be justified not only if the person so arrested be innocent, but even if the suspected offence has not been committed at all (Article 22); while, on the other hand, a private individual making such an arrest must in order to be justified shew that the suspected offence has been actually committed, (Article 25). Again, while a peace officer will be justified in arresting any person whom he himself finds at any time (whether by day or by night) committing any offence whatever, (Article 27), it is different with regard to a private individual; for it is only when he finds an offender committing the offence in the night time, (Article 28), that a private individual is justified in making an arrest without warrant for any offence outside of those enumerated in Article 552, sub-section 1. If it be in the day time that he finds an offender committing an offence, the offence in order to justify him in making the arrest without warrant, (Article 24), must be one of those enumerated in Article 552, sub-section 1, or, if not one of those, it must be one which is being committed against property of which such private individual is the owner, (Article 552, sub-section 5). ILLUSTRATIONS. A, a peace officer believes, on reasonable and probable grounds, that a burglary has been committed and that B has committed it. A arrests B without warrant. It turns out that no burglary has been committed at all. A is justified. A, a peace officer, believes, on reasonable and probable grounds, that a rape has been committed on B, and that C has committed it. A arrests C, without It turns out that C committed no rape but only a common assault. warrant. A is justified. A, who is not a peace officer, believes, on reasonable and probable grounds, that a burglary has been committed, and that B has committed it. A arrests B, It turns out that although there was a burglary B did not commit it. A is justified. In this case if there were no burglary committed A would not be justified. without warrant. A, who is not a peace officer, believes, on reasonable and probable grounds, that a rape has been committed on B by C. A arrests C, without warrant. It turns out that C committed no rape, but only a common assault. A is not justified. A, a peace officer, finds B in the act of committing an offence, in the day time. A is justified in arresting B, without warrant, whatever the offence may be. A, who is not a peace officer, finds B in the act of committing a common assault, in the day time. A is not justified in arresting B, without warrant; but if he were to find B in the day time committing a robbery he would be justified in arresting him without warrant; or if A were to find B committing a common assault or any other offence at night, he would be justified in arresting B, without warrant. A, a peace officer, finds B loitering in a yard by night, and has good cause to suspect B of being about to commit arson. A is justified in arresting B without warrant. A, who is not a peace officer, believes, on reasonable and probable grounds, that he finds B committing mischief on a railway by night. A is protected from criminal responsibility in arresting B, without warrant. A, who is not a peace officer, finds B in the act of defiling C, a child under fourteen. A at once informs D, a peace officer, who has not seen the act. D (accompanied by A) immediately pursues and overtakes B, and D then arrests him without warrant. D is justified. A, a private individual, finds B in the act of stealing and carrying away some of A's clothing or other effects. A is justified in arresting B without warrant. Under sec. 26 of the Criminal Procedure Act, R. S. C., c. 174, a person to whom any property was offered for sale or for pawn was, if he had reasonable cause to suspect that an offence had been committed on or with respect to such property, empowered to apprehend and carry before a justice of the peace the person offering the same, together with such property, to be dealt with according to law. But it will be seen, by Article 981 and schedule two of the Code, that this clause is repealed in common with the whole of chapter 174, R.S.C. 30. Statutory power of arrest. Nothing in this Act shall take away or diminish any authority given by any Act in force for the time being to arrest detain or put any restraint on any person. 31. Force used in arrests, &c. Every one justified or protected from criminal responsibility in executing any sentence, warrant or process, or in making any arrest, and every one lawfully assisting him, is justified or protected from criminal responsibility, as the case may be, in using such force as may be necessary to overcome any force used in resisting such execution or arrest, unless the sentence, process or warrant can be executed or the arrest effected by reasonable means in a less violent manner. This article is copied from section 41 of the English Draft Code, and is based upon the principle that, as in making an arrest or in executing any sentence, warrant, order, or process, a peace officer or other person legally authorized acts under legal command or compulsion he may, if resisted, repel force with force; and if, in using reasonable and necessary force to overcome resistance, the officer should happen, in the struggle, to kill the person resisting or any of his accomplices, he will be exonerated; while, on the other hand, if death should ensue to the officer or any one assisting him, the persons so resisting will be guilty of murder. (1) 32. Duty of persons arresting. It is the duty of every one executing. Any process or warrant to have it with him, and to produce it if required. 2. It is the duty of every one arresting another, whether with or without warrant, to give notice, where praticable of the process or warrant under which he acts, or of the cause of the arrest. 3. A failure to fulfil either of the two duties last mentioned shall not of itself deprive the person executing the process or warrant, or his assistants, or the person arresting, of protection from criminaĺ responsibility, but shall be relevant to the inquiry whether the (1) Fost. 270, 271, 318; 1 Hale, 494; Reg. v. Porter, 12 Cox, C. C. 444; 1 Russ Cr., 5 Ed. 710, 711. process or warrant might not have been executed, or the arrest effected, by reasonable means in a less violent manner. The third clause of this article is believed to alter the common law. 33. Preventing escape by flight from arrest-Every peace officer proceeding lawfully to arrest, with or without warrant, any person for any offence for which the offender may be arrested without warrant, and every one lawfully assisting in such arrest, is justified, if the person to be arrested takes to flight to avoid arrest, in using such force as may be necessary to prevent his escape by such flight, unless such escape can be prevented by reasonable means in a less violent manner. 34. Every private person proceeding lawfully to arrest without warrant any person for any offence for which the offender may be arrested without warrant is justified, if the person to be arrested takes to flight to avoid arrest, in using such force as may be necessary to prevent his escape by flight, unless such escape can be prevented by reasonable means in a less violent manner: Provided, that such force is neither intended nor likely to cause death or grievous bodily harm. 35. Every one proceeding lawfully to arrest any person for any cause other than such offence as in the last section mentioned is justified, if the person to be arrested takes to flight to avoid arrest, in using such force as may be necessary to prevent his escape by flight, unless such escape can be prevented by reasonable means in a less violent manner: Provided such force is neither intended nor likely to cause death or grievous bodily harm. 36. Preventing escape or rescue after arrest.—Every one who has lawfully arrested any person for any offence for which the offender may be arrested without warrant is pro'ected from criminal responsibility in using such force in order to prevent the rescue or escape of the person arrested as he believes, on reasonable grounds, to be necessary for that purpose. 37. Every one who has lawfully arrested any person for any cause other than an offence for which the offender may be arrested without warrant is protected from criminal responsibility in using such force in order to prevent his escape or rescue as he believes, on reasonable grounds, to be necessary for that purpose: Provided that such force is neither intended nor likely to cause death or grievous bodily harm. regards private persons. (1) These two articles (36 and 37) seem to extend the common law so far as 38. Preventing breach of the peace.—Every one who witnessess a breach of the peace is justified in interfering to prevent its continuance or renewal and may detain any person committing or about (1) 2 Hale, 83. |