International Law

R. v. Abel and Corbett

Abel and Corbett were convicted of offences arising out of their apprehension of one Holl, who was in possession of Abel’s rifle. Abel and Corbett wanted to argue at trial that they were effecting a citizen’s arrest, but the trial judge would not put this defence to the jury. And the British Columbia Court of Appeal agreed, interpreting s. 494(1)(a)’s “finds committing an indictable offence” narrowly (emphasis in the original):

An examination of the common law roots and historical statutory usage of this expression reveals that it connotes a situation where the arresting party comes upon someone in the very act of committing an offence. In other words, criminal activity must be taking place in the presence of the arresting party.

…

In this case, although Mr. Abel and Mr. Corbett reasonably believed Mr. Holl had stolen Mr. Abel?s rifle, they had no information as to where the rifle might be. They certainly did not come upon Mr. Holl in possession of it. As a result, it was not open to them to seek to justify their actions on the basis that Mr. Holl was ?found committing? the offence of possession of stolen property.

This may be right, but the Court doesn’t really respond to the appellant’s argument that this was a case involving constructive possession. At least in theory, they did come upon Mr. Holl in possession of the rifle. The ruling seems to hold that in cases of citizen’s arrest such a doctrine cannot be applied, though I’m not sure why not.

Full post as published by Criminal Review on February 09, 2008 (boomark / email).