5.3 Finds Committing, Reasonable Grounds & Limitations

5.3 Finds Committing, Reasonable Grounds & Limitations

Quick Answer: The single most-tested arrest rule is the 'finds committing' requirement: the guard must personally catch the person in the act. A report from someone else — even a trusted cashier — is not enough to arrest. Combined with the objective reasonable grounds test and the s.494(3) duty to deliver forthwith, this requirement sharply limits what a guard may do.

The 'Finds Committing' Requirement

Under both s.494(1) and s.494(2), the guard must find the person committing the offence. 'Finds committing' means personally witnessing the act — seeing the person commit, or be in the course of committing, the offence. The guard's own senses must capture the criminal act.

A report alone is not enough. This is the classic exam trap:

• A cashier says, 'That man just put a bottle of liquor in his backpack and left.' The guard did not see it. No arrest under s.494(2) — the guard did not find committing.
• A shopper points at a person and says, 'They just shoplifted.' The guard did not see it. No arrest on that report alone.
• A construction foreman reports that tools are missing and names a former employee. The guard did not witness the theft. No arrest.

What the guard may do when given a report:

• Observe the person from a distance and gather more facts.
• Approach and engage in a consensual conversation (the person is free to leave).
• Call police and let them investigate and arrest if warranted.
• Issue a trespass notice or ban the person from the property (a property-management action, not an arrest).
• Review CCTV to confirm the act — but note that CCTV review after the fact does not by itself satisfy 'finds committing' for an arrest at that moment. Under the Bill C-26 reasonable-time amendment, CCTV may support an arrest within a reasonable time where police cannot feasibly arrest, but the guard must still be able to identify the person as the one on the CCTV.

Reasonable Grounds — Objective Standard

Reasonable grounds is an objective test: what a reasonable person in the guard's position would believe, given the same articulable facts. The guard's subjective sincerity is not enough. The facts must be:

• Articulable — capable of being stated in writing (what you saw, heard, smelled, measured).
• Sufficient — a reasonable person would draw the same conclusion.
• Current — based on facts known at the time of arrest, not facts developed later.

A hunch ('he looked nervous'), a stereotype ('people like that always steal'), or an unverified tip ('someone said he stole') do not meet the objective standard.

Detention for Investigation vs Lawful Arrest

A security guard has no general power to detain a person for investigation. Police have investigative-detention powers under common law (R. v. Mann), but a private citizen — including a security guard — does not. If a guard stops a person, restricts their movement, and says 'you need to come with me to the office while we check the cameras,' that is a detention. If the guard lacks lawful arrest authority, the detention is false imprisonment, and any touching is assault.

The Duty to Deliver Forthwith and Limits on Holding

s.494(3) requires the arrested person be delivered forthwith to a peace officer. 'Forthwith' means promptly and without unreasonable delay. Practical rules:

• Call police immediately when the arrest is made.
• Keep the person under safe, reasonable watch until police arrive.
• Do not interrogate.
• Do not hold the person for a set period ('we always keep shoplifters two hours').
• Do not condition release on payment, a confession, or a parent/guardian arriving.
• If police will be significantly delayed, document the timing and the reasons — prolonged delay risks a false-imprisonment claim.

Limits on Pursuit

A guard's pursuit authority is limited. Under s.494(1), the 'freshly pursued' language allows pursuit of a person who is escaping, but the pursuit must be fresh — continuous, without significant break. A guard may pursue off the property a short distance to complete an arrest that began on the property under s.494(2), but:

• Pursuit into a private home is not permitted.
• Pursuit at high speed in a vehicle creates danger and is beyond the guard's role.
• Once pursuit is broken off or the person is out of sight, the 'fresh pursuit' basis weakens. Safety is the priority — observe, report, and let police take over.

What a Guard May Do Short of Arrest

When the 'finds committing' requirement is not met, or the guard is unsure, the guard may still:

• Observe — watch and note descriptions, direction of travel, vehicle plates.
• Document — write a timed incident report, preserve CCTV.
• Report — call police, the client, and the supervisor.
• Issue a trespass notice — under BC law, a person authorized by the occupier may direct a person to leave property they have no lawful reason to be on. This is a property-management power, not an arrest.
• Ban the person — communicate a prohibition from returning.
• Approach consensually — speak to the person if they are free to leave.

Common Errors (Exam Traps)

Do / Don't

Do:

• Personally witness the act before arresting under s.494(2).
• Base the decision on articulable, objective facts.
• Call police immediately and deliver the person forthwith.
• Use only the reasonable force necessary to effect the arrest.
• When in doubt, observe, report, and issue a trespass notice instead of arresting.

Don't:

• Arrest on a report alone.
• Use s.494(1) for a summary offence.
• Detain 'for investigation' in a back room.
• Hold the person beyond forthwith delivery.
• Pursue into a home or at high speed.
• Use force to punish, scare, or coerce.

Lawful vs Unlawful Arrest — Comparison

Key Takeaways

• 'Finds committing' requires the guard to personally witness the act — a report alone is not enough.
• Reasonable grounds is objective — what a reasonable person would believe from articulable facts.
• A guard has no general detention power — 'holding for investigation' can be false imprisonment.
• s.494(3) requires forthwith delivery to a peace officer — no prolonged holding.
• Short of arrest, a guard may observe, document, report, issue a trespass notice, or ban the person.