2A.3 Criminal Code Basics for Security

What the Criminal Code Is

The Criminal Code (R.S.C. 1985, c. C-46) is the federal statute that defines most criminal offences in Canada and sets out the procedures and powers for dealing with them. Because criminal law is a federal head of power under Section 91(27) of the Constitution Act, 1867, the Criminal Code applies uniformly across every province. Alberta cannot create its own criminal offences; it can only administer and prosecute the offences the Criminal Code already defines.

For a security guard, the Criminal Code matters in two ways:

1. It defines the offences a guard most often encounters and observes — theft, robbery, mischief, breaking and entering, trespass by night, assault.
2. It gives the justifications that make a guard's use of force lawful — most importantly s.25 (justification), s.26 (excessive force), and s.27 (preventing an offence), with s.494 (citizen's arrest) detailed in Module 2B.

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Key Sections for Security Guards

The sections in bold above are the ones you must be able to recognize and explain on the ABST exam. Sections 25, 26, 27, and 494 are the use-of-force and arrest sections; they are covered in detail in Module 2B. This section focuses on the offence sections and the general purpose of the Code.

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Section 25 — Justification of Force

Section 25 is the general justification for using force. It says that anyone who is required, by law, to use force to prevent an offence or to effect a lawful arrest is justified in using as much force as is reasonable in the circumstances, provided they act on reasonable and probable grounds.

For a security guard, s.25 works together with s.494 (citizen's arrest): if the guard has the lawful basis for arrest that s.494 requires, s.25 justifies the reasonable force used to carry out that arrest. The word reasonable is doing a lot of work — it is the link to s.26.

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Section 26 — Excessive Force

Section 26 is the correction to s.25. It says that anyone who uses more force than is reasonably necessary is criminally liable for any offence that results from the excessive force, and is also liable in civil proceedings.

The two sections work as a pair:

• s.25 justifies reasonable force.
• s.26 criminalizes unreasonable (excessive) force.

A guard who grabs a shoplifter who is not resisting and throws them to the ground, or who strikes someone who is complying, is likely using excessive force. Even if the arrest itself was lawful under s.494, the excessive force can result in an assault charge against the guard and a civil lawsuit against the guard and the employer.

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Section 27 — Preventing an Offence

Section 27 authorizes a person to use as much force as is reasonably necessary to prevent the commission of an offence — but only an offence that would be prosecutable on indictment (an indictable offence). This section is narrower than it sounds and is covered in detail in Module 2B together with s.494. The key point for now: prevention is different from arrest. Prevention stops a crime that is about to happen; arrest responds to a crime that has happened or is happening.

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Section 322 — Theft

Theft is one of the offences a security guard encounters most often. Section 322 defines theft as fraudulently and without colour of right taking or converting property with intent to deprive the owner of it.

The key elements a guard must be able to articulate:

• Taking or converting — physically moving the property, or dealing with it as if it were one's own.
• Fraudulently and without colour of right — no honest claim of entitlement.
• Intent to deprive — the person means to keep the property or not return it.

Theft is divided by dollar value:

• Theft under $5,000 (s.334(b)) — a hybrid offence.
• Theft over $5,000 (s.334(a)) — an indictable offence.

A guard does not decide which category applies — that is the Crown's decision on a hybrid offence, and the value is determined by the court. A guard's job is to observe and report the facts (what was taken, its value, the suspect's actions) accurately.

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Robbery, Mischief, Breaking and Entering, Trespass by Night

• Robbery (s.343) is theft escalated by violence — the offender steals and, in the course of doing so, uses violence, threatens violence, or assaults the victim. Robbery is always indictable and serious. A guard who witnesses robbery should prioritize safety, observe, and call police; confronting an armed or violent robber is generally not justified unless someone is in immediate danger.
• Mischief (s.430) is damaging or destroying property or interfering with another person's lawful use of their property. Spray-painting a wall, slashing tires, or blocking a driveway are all mischief. Mischief is usually hybrid.
• Breaking and entering (s.348) is entering a place without authority with intent to commit an indictable offence inside (usually theft). "Breaking" includes opening a door or window to get in. Breaking and entering is indictable and carries serious penalties. A guard who finds someone inside a closed business after hours, with tools or a bag, has reasonable grounds to suspect breaking and entering.
• Trespass by night (s.177) is loitering or prowling at night near a dwelling-house without a lawful excuse. It is a distinct offence from provincial trespass (which is not in the Criminal Code at all). Trespass by night is hybrid.

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The Guard's Role Under the Criminal Code

A security guard is not a Criminal Code enforcement officer. The guard's relationship to the Code is indirect:

1. Observe — recognize the elements of an offence so you can articulate reasonable grounds later.
2. Report — call police and provide a clear, factual account of what you saw.
3. Arrest (limited) — perform a citizen's arrest under s.494 only when the legal threshold is met (covered in Module 2B).
4. Use force (limited) — use only reasonable force under s.25, never excessive force (s.26).
5. Do not investigate or interrogate — that is the police's role, and it must be done with Charter rights respected.

Recognizing the elements of common offences matters because a guard must be able to explain, after the fact, why they had reasonable grounds to detain or arrest someone. "He looked suspicious" is not reasonable grounds. "I saw him select the item, conceal it in his jacket, and walk past the last point of payment without paying" is reasonable grounds for theft.