Assault/Tresspass To Property Act Question(Ontario)

[cpgop]

Brief disclaimer; First and foremost in every situation, calling, or alerting a police officer, or person charged with enforcing the law is going to be the best step always. In no way am I attempting/trying to bend a Provincial Act to stand in place of a Federal Law simply so that I can be a "super hero"

Now this question is in respect to security guards, in a retail/mall setting, in Ontario. I pose this question out of curiosity after a conversation with a co-worker, regarding what our post orders/policy states to do in regards to a physical altercation between two person(s) on private property. Now in the event we are called, or view, a physical altercation happening on the property we are to first(and obviously) alert the police. Second, if we are able and it's necessary as well as safe at our discretion, to attempt to break up/stop both persons through means of an arrest. Now the during our conversation, an interesting point popped up in regards to interpretation of the Criminal Code.

Assault
265. (1) A person commits an assault when
(a) without the consent of another person, he applies force intentionally to that other person, directly or indirectly;

Definition of consent;
Consent

(3) For the purposes of this section, no consent is obtained where the complainant submits or does not resist by reason of
(a) the application of force to the complainant or to a person other than the complainant;
(b) threats or fear of the application of force to the complainant or to a person other than the complainant;
(c) fraud; or
(d) the exercise of authority.

Per section 265 (1) A, it states that there must not be consent for it to be classed as an assault, now per example;

Security Guard A, and Security Guard B, observe a physical altercation between person C and person D, they alert the police, and deem in necessary to affect an arrest, they take physical control of Person C and D, and place both C and D under arrest, for Assault. Now obviously during the physical altercation there is no way to determine if C and D have consented to this. In the event that C and D state after being placed under arrest that it was a consent fight, would the arrest be deemed to be an unlawful arrest?

The other point/topic which came up (again not trying to bend the TPA)
Would it of been a better idea (in your opinion) for Security Guard A, and Security Guard B, to place Person C and D, under arrest per Trespass To Property Act, for engage in prohibited activity as long as sufficient signage/notice was given per the act, and allow for the arriving police officers to determine if they should be charged with assault.

More so just interested in the opinions / interpretation. I understand you're mostly police officers, not lawyers, and this is not a place for legal advice. I do plan on speaking with our supervisor as well in regards to this.

Regards
Cpgop

[IndictableChaser]

Breach of the peace
31. Arrest for breach of peace

(1) Every peace officer who witnesses a breach of the peace and every one who lawfully assists the peace officer is justified in arresting any person whom he finds committing the breach of the peace or who, on reasonable grounds, he believes is about to join in or renew the breach of the peace.

Mischief
(c) obstructs, interrupts or interferes with the lawful use, enjoyment or operation of property; or
(d) obstructs, interrupts or interferes with any person in the lawful use, enjoyment or operation of property


Causing disturbance, indecent exhibition, loitering, etc.
175. (1) Every one who
(a) not being in a dwelling-house, causes a disturbance in or near a public place,
(i) by fighting, screaming, shouting, swearing, singing or using insulting or obscene language,
(ii) by being drunk, or
(iii) by impeding or molesting other persons,
(b) openly exposes or exhibits an indecent exhibition in a public place,
(c) loiters in a public place and in any way obstructs persons who are in that place, or
(d) disturbs the peace and quiet of the occupants of a dwelling-house by discharging firearms or by other disorderly conduct in a public place or who, not being an occupant of a dwelling-house comprised in a particular building or structure, disturbs the peace and quiet of the occupants of a dwelling-house comprised in the building or structure by discharging firearms or by other disorderly conduct in any part of a building or structure to which, at the time of such conduct, the occupants of two or more dwelling-houses comprised in the building or structure have access as of right or by invitation, express or implied,
is guilty of an offence punishable on summary conviction.






Take your pick. Happy?

[cpgop]

Take your pick. Happy?

Thank you for your input, looks like we've overlooked that section 175 overlaps on this subject. We were more debating the assault aspect of it and forgot to consider the other avenues. Thanks again.

[mack_silent]

As long as it's on your property, you can arrest them for assault, TPA, or mischief.
Just make sure you ID yourselves as security guards for the property and tell them to stop prior to engaging. (for obvious reasons)

[IndictableChaser]

Take your pick. Happy?

Thank you for your input, looks like we've overlooked that section 175 overlaps on this subject. We were more debating the assault aspect of it and forgot to consider the other avenues. Thanks again.

[leewd]

If I were security, I'd arrest for causing a disturbance (If absolutely necessary to stop the disturbance, prevent further injury), then let the police work out the other stuff, such as whether there will/ will not be any charges.

[nothof60]

post removed by moderator, not only is the thread over 5 years old, it probably should have been locked in the first place. Public forums with unverified users are not appropriate venues for these discussions.