6.2 Charter Rights & Delivery to a Peace Officer

Charter Rights & Delivery to a Peace Officer

The moment you arrest someone, you trigger Charter duties and a Criminal Code obligation to deliver the person to police without delay. These are not optional steps — they are the legal backbone of a lawful citizen's arrest.

When a security guard makes a citizen's arrest under Criminal Code s.494, the arrest is only the beginning. Two streams of duties attach immediately: the Canadian Charter of Rights and Freedoms rights you must give the person, and the Criminal Code s.494(3) duty to deliver the person to a peace officer forthwith. Failing on either stream can void the lawfulness of the arrest and expose you and your employer to civil and disciplinary liability.

Why This Matters on the Exam

The BST exam repeatedly tests whether a guard knows what to say the instant the arrest is made and what to do next. A guard who arrests correctly but forgets the right-to-counsel caution, or who holds the person to question them, has converted a lawful arrest into a Charter breach. These are the easiest marks to earn on the exam — and the easiest to lose on shift.

Charter s.10(a): Reason for Arrest

Charter s.10(a) requires that a person arrested or detained be informed promptly of the reason for the arrest. For a guard, this means stating, in plain language, what the person is alleged to have done and that they are under arrest.

• Say it aloud to the subject, not just to your partner.
• Be specific: "You are under arrest for theft under $5,000. You put the jacket in your bag and walked past the till."
• Say it immediately — not after walking them to the security office, not after calling your supervisor.

Charter s.10(b): Right to Counsel

Charter s.10(b) requires that the person be advised of their right to retain and instruct counsel without delay and given a reasonable opportunity to do so. For a security guard, the practical duty is to:

1. Tell the person they have the right to speak to a lawyer.
2. Offer to help them contact one (phone, phone number, or a 24-hour service).
3. Stop any questioning.

You do not have to provide a lawyer or wait for one to arrive before delivery to police — your duty is to inform and offer, then deliver. The deeper s.10(b) implementation (access to duty counsel, interview rights) is handled by the police after you transfer the person.

The Duty to Deliver Forthwith — s.494(3)

Criminal Code s.494(3) requires that a person arrested by a citizen be delivered forthwith to a peace officer. Forthwith means immediately, without unreasonable delay. It does not mean "when convenient" or "after we finish our paperwork."

Practical steps:

• Call police immediately after the arrest is secured.
• Do not transport the person yourself unless police direct it (and even then, document the instruction).
• Do not take the person home, to a back office for a long interview, or anywhere that adds delay.
• If police response is delayed, keep the person in a safe, observable location and document every minute of the wait and every police communication.

The Prohibition on Questioning and Interrogation

Once arrested, the person is in your custody. You are not an investigator. Asking questions to gather evidence — "why did you steal it," "who else was with you," "where do you live" — can:

• Violate Charter s.7 (right to silence) and s.10(b) (counsel) protections.
• Render any statement inadmissible.
• Turn a clean arrest into civil and disciplinary liability.

You may ask operational questions needed for safety and delivery — name, date of birth (for police dispatch), medical conditions, injuries. You may not interrogate.

Safety and Dignity of the Arrested Person

You have a duty of care for anyone in your custody. That includes:

• Protection from third parties (other patrons, weather).
• Medical attention if injured or complaining of injury.
• Water, warmth, and basic dignity.
• Continuous observation — never leave an arrested person alone.

A person injured during arrest, or who becomes medically distressed, must receive care and be transported to medical aid; document the care and the medical route.

Documenting the Arrest

Record, at the time, the following:

• Time of arrest and the exact words you used to state the reason and the right to counsel.
• Time police were called and the police file number.
• Time of delivery to the peace officer and the officer's name/badge number.
• Subject statements (voluntary, spontaneous — not in response to questions).
• Force used, if any, in a separate use-of-force report.

This is your evidence of compliance with the Charter and s.494(3).

Charter-Rights Arrest Checklist

Consequences of a Charter Breach

A Charter breach does not automatically void the arrest, but it can:

• Lead a court to exclude evidence under Charter s.24(2), undermining the prosecution.
• Form the basis of a civil claim for false imprisonment or Charter damages.
• Trigger disciplinary action by the Registrar for professional misconduct.

A lawful arrest without these steps is an unlawful detention.

Key Takeaways

• s.10(a): state the reason, immediately, in plain language.
• s.10(b): advise right to counsel, offer to help, stop questioning.
• s.494(3): deliver forthwith — immediately, without unreasonable delay.
• No interrogation — only operational/safety questions.
• Document everything — your protection in every liability layer.