4.1 Criminal Code Provisions on Use of Force (Sections 25, 26, 27, 34, 35)

Criminal Code Provisions on Use of Force (Sections 25, 26, 27, 34, 35)

In Canadian jurisprudence, private security guards do not possess peace officer status, sovereign immunity, or special legal prerogatives to inflict physical violence upon other human beings. Under Canadian criminal law, touching another individual without their consent is prima facie (at first glance) unlawful and constitutes the criminal offence of assault under Section 265 of the Criminal Code of Canada (R.S.C., 1985, c. C-46). Whenever a security guard lays hands on a subject, applies mechanical restraints, or deploys defensive equipment, their actions are legally classified as an application of force.

To avoid criminal prosecution for assault, assault causing bodily harm, or aggravated assault, a security guard must rely on specific statutory exemptions and justifications set out in the Criminal Code. Specifically, Sections 25, 26, 27, 34, and 35 establish the statutory framework that defines when force is legally justified, what degree of force may be deployed, and the precise point at which lawful intervention transforms into a criminal offence.

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Criminal Code Section 25: Protection of Persons Acting Under Authority

Section 25 is the primary statutory shield protecting individuals who are required or authorized by law to perform law enforcement or security functions. It establishes the baseline standard for lawful physical intervention in Canada.

Criminal Code Section 25(1) — Protection of Persons Acting Under Authority: "Every one who is required or authorized by law to do anything in the administration or enforcement of the law (a) as a private person, (b) as a peace officer or public officer, (c) in aid of a peace officer or public officer, or (d) by virtue of his office, is, if he acts on reasonable grounds, justified in doing what he is required or authorized to do and in using as much force as is necessary for that purpose."

The Dual Statutory Threshold of Section 25(1)

For a security guard to claim the legal protection of Section 25(1), their actions must satisfy two cumulative conditions:

1. Authorized by Law: The guard must be executing an act they are specifically authorized by law to perform. For private security personnel, this authorization typically stems from executing a lawful citizen's arrest under Criminal Code Section 494 or enforcing property boundaries as an authorized agent of the occupier under the Trespass to Property Act (TPA). If the underlying arrest or detention is unlawful (for example, arresting someone on mere suspicion or hearsay without meeting the "found committing" standard), Section 25(1) provides zero protection, and any touching is immediately unlawful battery.
2. Reasonable Grounds and Necessity: The guard must act on "reasonable grounds" (an objective belief based on observable facts, not mere hunch) and use only as much force as is necessary for that specific purpose. If a subject can be guided by verbal instruction or soft escort holds, deploying strikes or takedowns is strictly unnecessary and therefore unlawful.

Section 25(3): Restrictions on Force Intended to Cause Death or Grievous Bodily Harm

Section 25(3) severely restricts the use of lethal force or force intended to cause grievous bodily harm. Under Canadian law, a person is not justified in using force that is intended or likely to cause death or grievous bodily harm unless they believe on reasonable grounds that it is necessary to save themselves or another person from death or grievous bodily harm. Security guards are never authorized to use lethal force merely to protect property, enforce commercial rules, or prevent a fleeing suspect from escaping.

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Criminal Code Section 26: Excessive Force and Criminal Accountability

While Section 25 provides legal justification for necessary force, Section 26 serves as a vital statutory check against the abuse of power. It explicitly eliminates any notion of immunity when force crosses the boundary of necessity.

Criminal Code Section 26 — Excessive Force: "Every one who is authorized by law to use force is criminally responsible for any excess thereof, according to the nature and quality of the act that constitutes the excess."

The Legal Impact of Section 26 on Security Personnel

Section 26 means that legal authority is not an all-or-nothing shield. A physical encounter often begins lawfully but ends unlawfully. The moment a subject stops resisting, complies with instructions, or is successfully secured in handcuffs, the legal authority to apply physical force instantly terminates.

If a security guard continues to strike, push, kick, choke, or inflict pain on a subdued or compliant suspect, the guard is fully criminally responsible for every blow struck after resistance ceased. Under Section 26, the initial lawful arrest does not protect the guard from criminal charges.

The Spectrum of Legal Liability for Excessive Force

When a security guard deploys excessive force, they face severe legal consequences across three distinct jurisdictions:

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Criminal Code Section 27: Use of Force to Prevent Commission of Serious Offences

Section 27 empowers individuals to use physical force proactively to prevent the commission of violent or dangerous crimes before they occur.

Criminal Code Section 27 — Use of Force to Prevent Commission of Offence: "Every one is justified in using as much force as is reasonably necessary (a) to prevent the commission of an offence for which, if it were committed, the person who committed it might be arrested without warrant, and that would be likely to cause immediate and serious injury to the person or property of anyone; or (b) to prevent anything being done that, on reasonable grounds, he believes would, if it were done, be an offence mentioned in paragraph (a)."

Core Conditions of Section 27

To lawfully rely on Section 27, two criteria must exist concurrently:

1. The anticipated offence must be an arrestable offence without warrant (such as an indictable or hybrid offence under Section 494); and
2. The offence must be likely to cause immediate and serious injury to a person or to property (e.g., stopping an individual from hurling a brick through an occupied glass door, setting fire to a facility, or assaulting a customer).

Section 27 does not authorize physical force to prevent minor summary infractions, simple verbal harassment, or non-destructive trespass.

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Criminal Code Section 34: Defence of Person (Self-Defence and Defence of Others)

In 2012, Parliament enacted the Citizen's Arrest and Self-defence Act (Bill C-26), completely repealing Canada's antiquated, convoluted self-defence provisions (the old sections 34 through 37) and establishing a modernized, unified framework under Section 34.

The Modern Three-Part Statutory Test (Section 34(1))

Under Section 34(1), a person is not guilty of an offence if they commit an act in defence of themselves or another person, provided three elements are satisfied:

1. Reasonable Belief of Threat (s. 34(1)(a)): They believe on reasonable grounds that force is being used against them or another person, or that a threat of force is being made.
2. Defensive Purpose (s. 34(1)(b)): The act that constitutes the offence is committed for the sole purpose of defending or protecting themselves or the other person from that use or threat of force (not for revenge, retaliation, punishment, or anger).
3. Reasonableness of the Act (s. 34(1)(c)): The defensive act committed is reasonable in the circumstances.

Statutory Factors for Determining Reasonableness (Section 34(2))

To determine whether a security guard's defensive action was "reasonable in the circumstances," Section 34(2) requires courts to assess all relevant factors, including:

• Nature of the Threat: Was force actual, threatened, or imminent? What was the severity of the threatened injury?
• Imminence and Available Alternatives: Was the danger immediate? Were other non-violent means available to respond (e.g., retreating, verbal de-escalation, disengaging behind a locked door, calling 911)?
• Role of the Person: Did the security guard provoke or escalate the encounter? A guard who uses provocative insults or initiates aggressive physical contact cannot easily claim self-defence.
• Parties' Physical Attributes: The comparative size, age, gender, physical capabilities, and numbers of the persons involved.
• Relationship Between Parties: Any prior history or interactions between the guard and the subject.
• Nature and Proportionality of Response: Was the defensive force calibrated to the threat, or was it disproportionate? Using an impact weapon against an unarmed person pushing a shoulder is disproportionate.
• Involvement of Weapons: Whether a weapon was used or threatened by either party.

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Criminal Code Section 35: Defence of Property

Bill C-26 also modernized the law governing defence of property under Section 35, replacing the old sections 38 through 42.

The Statutory Test for Defence of Property (Section 35(1))

A security guard is not guilty of an offence if they commit an act to protect property, provided four cumulative conditions are satisfied:

1. Peaceable Possession: The guard is in peaceable possession of the property, or is acting under the authority of, or lawfully assisting, a person believed on reasonable grounds to be in peaceable possession of the property.
2. Reasonable Belief of Interference: The guard believes on reasonable grounds that another person is about to enter, entering, or has entered the property without lawful authority, is about to damage or destroy property, or is about to take property.
3. Protective Purpose: The act is committed solely for the purpose of preventing unauthorized entry, retaking the property, or preventing damage.
4. Reasonable in the Circumstances: The defensive action taken is reasonable in the circumstances.

The Critical Boundary: Property vs. Human Life

Canadian common law and statutory interpretation draw an unyielding distinction between the protection of human life and the protection of material property:

[!CAUTION] Physical force used in defence of property under Section 35 can NEVER justify causing death or grievous bodily harm. Under Canadian law, human life, health, and physical integrity strictly supersede material property. A security guard can never shoot, severely bludgeon, or choke an individual to protect merchandise, stop a trespasser, or prevent vandalism.

Summary of Criminal Code Use of Force Statutory Provisions

The following table outlines the core statutory provisions governing physical force in Canadian private security practice, highlighting the legal thresholds, authorized scope, and practical operational boundaries: