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Criminal - Citizen's Arrest. R. v. Khill
In R. v. Khill (Ont CA, 2025) the Ontario Court of Appeal dismissed a criminal conviction appeal (but allows a sentencing reduction), here from a manslaughter conviction - this in the defendant's second trial, where the first went up to the SCC.
Here the court considers the law of 'citizen's arrest' [CCC 494(2)], as it relates to self-defence [CCC s.34] (in this case at least):[76] The appellant submits that the trial judge erred in failing to instruct the jury on the application of s. 494(2) of the Criminal Code, which provides the following powers for what is colloquially known as a citizen’s arrest:Arrest by owner, etc., of property
(2) The owner or a person in lawful possession of property, or a person authorized by the owner or by a person in lawful possession of property, may arrest a person without a warrant if they find them committing a criminal offence on or in relation to that property and
(a) they make the arrest at that time; or
(b) they make the arrest within a reasonable time after the offence is committed and they believe on reasonable grounds that it is not feasible in the circumstances for a peace officer to make the arrest. ....
[80] As noted, this issue was raised before the Supreme Court of Canada. In her reasons, Martin J. did not refer to s. 494 specifically in relation to s. 34(2)(c).[3] However, she made the following observation, at para. 96: “Legality is also an unhelpful tool in assessing reasonableness. Whether an act is lawful or not shines little light on whether it was reasonable. Lawful conduct may be unreasonable and vice versa.”
[81] For these reasons, an instruction on s. 494(2) of the Criminal Code would not have advanced the appellant’s defence. We also agree with the respondent that the legality of a citizen’s arrest under s. 494(2) of the Criminal Code engages its own reasonableness requirements: R. v. Meszaros, 2013 ONCA 682, 309 C.C.C. (3d) 392, at para. 25. The inclusion of an instruction on s. 494(2) would not have been helpful and could have unnecessarily complicated the charge.
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