I haven't seen an exact interpretation of "employed" under s.2 but I did find this gem from the Supreme Court:
Nolan, [1987] 1 SCR 1212:
<http://canlii.ca/t/1ftmv>
The court says, at paras. 19-20:
On the level of principle, it is important to remember that the definition of "peace officer" in s. 2 of the Criminal Code is not designed to create a police force. It simply provides that certain persons who derive their authority from other sources will be treated as "peace officers" as well, enabling them to enforce the Criminal Code within the scope of their pre‑existing authority, and to benefit from certain protections granted only to "peace officers". Any broader reading of s. 2 could lead to considerable constitutional difficulties. Section 92(14) of the Constitution Act, 1867 provides that the administration of justice falls within provincial legislative competence. See Di Iorio v. Warden of the Montreal Jail, 1976 CanLII 1 (SCC), [1978] 1 S.C.R. 152, and Attorney General of Quebec and Keable v. Attorney General of Canada, 1978 CanLII 23 (SCC), [1979] 1 S.C.R. 218. Although the ability of the federal Parliament to create a national police force has never been challenged and any such exercise of authority is presumptively valid, to treat s. 2 of the Criminal Code as a broad grant of authority to thousands of persons to act as "peace officers" in any circumstances could well prompt a constitutional challenge. In the context of division of powers, legislation should be interpreted, when possible, so that it is not ultra vires. The assessment of legislation under the Canadian Charter of Rights and Freedoms is, of course, subject to different considerations. See Manitoba (Attorney General) v. Metropolitan Stores Ltd., 1987 CanLII 79 (SCC), [1987] 1 S.C.R. 110.
I would therefore conclude that the definition of "peace officer" in s. 2 of the Criminal Code serves only to grant additional powers to enforce the criminal law to persons who must otherwise operate within the limits of their statutory or common law sources of authority.
This is consistent with the other case I posted in the Nanaimo thread, which stated that the definition in s. 2 of the Criminal Code does not
itself confer the authority to enforce the criminal law.
The authority to create a police force and enforce the criminal law has to come from somewhere. The Canadian constitution (BNA Act) gives provincial governments the authority to administer justice, which includes the ability to create police forces. There is nothing in the constitution that would give that power to private citizens (which is also why convening your own court never works). If freemen want to claim that some other authority gives them this power, then not only must prove that authority exists in reality but it must also be recognized in Canadian law.
But what if I employ a private security guard? Private security guards are not peace officers because their primary duty is not to preserve the public peace generally, but to secure a specific private person or premises.
Can I employ someone to preserve the public peace generally? There is no constitutional authority to do that unless you are the government.
I also found
Orban, [1972] 5 W.W.R. 222,. It's not on CanLII, so I will post the entire decision with the relevant parts bolded. Essentially, the case holds that a private security guard is not a peace officer.
1 This is an appeal by way of stated case. The appellants were convicted on 14th June 1971 at the City of Regina, in the Province of Saskatchewan, by Bence J.M.C. for that they, on 2nd February 1971, at the said City of Regina, did unlawfully commit a common assault on Mary Duke contrary to s. 231(1) of the Criminal Code, 1953-54 (Can.), c. 51 [now s. 245(1)]. Bence J.M.C. fined each of the appellants the sum of $50 without costs and in default of payment to serve 30 days in Regina Correctional Centre respectively.
2 The facts as stated in the case by Bence J.M.C. were as follows:
I found that on the 2nd day of February A.D. 1971, the said accused were in Eaton's Store, Rose Street & 7th Avenue, Regina, Saskatchewan. The accused Renatta Douglas was seen by the Informant, Mary Duke, a Security Officer employed by Eaton's to pick up five or six records in the music department and place them under a long coat which she was wearing. Renatta Douglas then left the store followed by Mary Duke. On the parking lot outside the store Renatta Douglas was stopped by Mary Duke who placed a hand on the accused's left hand and identified herself. Mary Duke then told the accused that she had merchandise she had not paid for. The accused told Mary Duke to take her hands off her. They struggled, both went to the ground and Mary Duke was kicked by Renatta Douglas. The accused David Orban then arrived on this scene and told Mary Duke to get her hands off Renatta Douglas and grabbed Mary Duke's left hand twisting it behind her back and shoved her against a car. David Orban and Renatta Douglas then left the scene in a car. Mary Duke got the license number and in Court identified both accused. No charge of theft was laid and no records were found. No records were dropped at the scene.
I ruled that Mary Duke was not a peace officer under Section 2(30) of the Criminal Code and Section 435 thereof, but held that she was entitled to arrest Renatta Douglas as she had found her committing an indictable offence, namely, theft, contrary to Section 280 of the Criminal Code and by virtue of the authority contained in Section 434 of the said Code. I held that the use of force by Renatta Douglas to avoid her arrest and the aid given to her by the accused David Orban constituted an assault on the part of both of them and convicted them accordingly. I rejected the argument of Counsel for the accused that the onus was on the Crown to establish beyond a reasonable doubt that Renatta Douglas had in fact committed theft before I could find that Mary Duke was justified in arresting Renatta Douglas without a warrant, although I stated I was satisfied that a theft had occurred ...
Now, therefore, in compliance with such application and having stated a case, as aforesaid, the questions submitted for the judgment of this Honourable Court are:
(1) Was I right in holding that the Informant, Mary Duke, was entitled to arrest or attempt to arrest the accused Renatta Douglas without a warrant?
(2) Was I right in refusing to hold that there was an onus on the Crown to prove beyond a reasonable doubt that Renatta Douglas had committed theft?
3 The informant, Mary Duke, was employed by a private company, Eaton's, as a security officer in their Regina store to, inter alia, protect merchandise from being stolen by thieves. In the definition section of the Code, s. 2, certain officials, police officers, persons "employed for the preservation and maintenance of the public peace" and other specified persons are declared to be peace officers. A security officer employed by a private person or firm is outside the ambit of the statutory definition in said s. 2. However, the statutory definition is not exhaustive for the opening words are "'peace officer' includes".
4 Turning away from the statutory definition, Haultain C.J.S. in Rex v. Magee, 17 Sask. L.R. 501, [1923] 3 W.W.R. 55 at 57, 40 C.C.C. 10 (C.A.), said:
'Public peace' may be taken as equivalent to 'the King's Peace,' in its broader and later signification. The King's Peace is 'the legal name of the normal state of society.' (Stephens' History of the Criminal Law, vol. 1, p. 185.) 'The Peace' is defined in Murray's New English Dictionary as being 'the King's Peace in its widest sense, the general peace and order of the realm as provided for by law.'
'Peace,' particularly connotes 'a quiet and harmless behaviour towards the King and his people.' Stroud's Judicial Dictionary.
'The King's Peace at first only extended to crimes which were the original pleas of the Crown but the King's Peace by an easy process extended itself until it had become an all embracing atmosphere. [2 Pollock & Maitland, 462].
Applied to the internal regulations of a nation, peace imports, in a technical sense, not merely a state of repose or security as opposed to one of violence or warfare but likewise a state of public order and decorum. [Bouvier, Law Dictionary.]
5 Apart from statute, broadly speaking, a peace officer is a person whose primary duty is to preserve the King's Peace. The informant's primary duty, on the other hand, was to serve her employer in and about her employer's premises as a security officer, and as such she was not, as Bence J.M.C. correctly found, a peace officer. Her powers to arrest were therefore limited to those powers of arrest which the law gives to every citizen: see Rex v. Lipman, 63 C.C.C. 148, [1935] 3 D.L.R. 122 (Ont.).
6 The common law with respect to the right of one citizen to arrest another citizen and the right of a citizen to resist an unlawful arrest is summarized in the leading case of Christie et al. v. Leachinsky, [1947] A.C. 573, [1947] 1 All E.R. 567. Lord Simonds said at p. 591 [A.C.]:
Putting first things first, I would say that it is the right of every citizen to be free from arrest unless there is in some other citizen, whether a constable or not, the right to arrest him. And I would say next that it is the corollary of the right of every citizen to be thus free from arrest that he should be entitled to resist arrest unless that arrest is lawful. How can these rights be reconciled with the proposition that he may be arrested without knowing why he is arrested? It is to be remembered that the right of the constable in or out of uniform is, except for a circumstance irrelevant to the present discussion, the same as that of every other citizen. Is citizen A. bound to submit unresistingly to arrest by citizen B. in ignorance of the charge made against him? I think, my Lords, that cannot be the law of England. Blind unquestioning obedience is the law of tyrants and of slaves: it does not yet flourish on English soil.
7 And at p. 595:
This case will have served a useful purpose if it enables your Lordships once more to proclaim that a man is not to be deprived of his liberty except in due course and process of law.
8 And see Lord du Parcq at pp. 596-604.
9 At the material date, 14th June 1971, the present Criminal Code, R.S.C. 1970, c. C-34, had not been proclaimed, and the former Code was still in effect. The following sections thereof are relevant:
10
434. Any one may arrest without warrant a person whom he finds committing an indictable offence.
11
280. Except where otherwise prescribed by law, every one who commits theft is guilty of an indictable offence and ...
12
(1) 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 ...
is, if he acts on reasonable and probable grounds, justified in doing what he is required or authorized to do and in using as much force as is necessary for that purpose.
13 By virtue of said s. 434 the informant was authorized to arrest the appellant, Renatta Douglas, without a warrant if she found her committing the indictable offence of theft. The leading case in this province is Attorney General for Saskatchewan v. Pritchard (1961), 34 W.W.R. 458, 35 C.R. 150, 130 C.C.C. 61 (Sask. C.A.). The judgment of the Court dismissing the Crown's appeal was delivered by Culliton J.A. (as he then was). Briefly stated, the facts were as follows: Pritchard was told by Constable Reimer to get into the police car. He did so and was then told by Reimer that he was under arrest for causing a disturbance by fighting. While Reimer was away from the car dealing with another man, Pritchard ran away. Pritchard was acquitted of the charge of causing a disturbance by fighting. He was, however, charged with escaping from lawful custody. The Magistrate dismissed this charge on the ground that Reimer "did not find the accused committing an offence because he was acquitted on his trial".
14 The Crown appealed. Culliton J.A. said at p. 461:
The general rule seems to be that where a statute confers the power to arrest, without a warrant, a person found committing a criminal offence, but does not expressly give the right to arrest on reasonable and probable grounds that such person is committing a criminal offence, then the arrest can not be justified if the person in fact was not committing a criminal offence.
15 And at p. 462:
The subsequent trial and acquittal established once and for all that the respondent was not found committing a criminal offence. Under these circumstances the arrest was not a legal arrest and the learned magistrate was right in holding that therefore he could not be guilty of escaping legal arrest
. . . . .
While a peace officer has no right to arrest without a warrant a person he finds committing an offence unless an offence was in fact committed, nevertheless, even if the officer was in error in so arresting, if he acted on reasonable and probable grounds, he is given protection under Sec. 25 of the Code.
16 The Pritchard case has been followed in Reid v. De Groot et al., [1963] 2 C.C.C. 327, 40 D.L.R. (2d) 867 (N.S.), and Regina v. Klat, 66 W.W.R. 339, 5 C.R.N.S. 136, [1969] 2 C.C.C. 129 (B.C. C.A.).
17 In the Pritchard case, Pritchard had been tried and acquitted of the charge upon which he had been arrested. In this case the appellant Douglas, hereafter referred to as "Douglas", was neither charged with nor tried for the theft of the records.
18 If the evidence established with the necessary degree of proof that Douglas stole the records, then in the circumstances the informant by s. 434 was entitled, on seeing the theft committed, to arrest her, and it was her duty to submit to such arrest. If the evidence fell short of the necessary degree of proof then the Crown failed to prove the theft, with the result that on the evidence before Bence J.M.C. the informant could not be found to be authorized to make the arrest and in such case the said appellant was entitled to resist the illegal arrest. It was this question as to the necessary degree of proof which obviously perplexed the learned Judge and, as shown by the second question submitted, he refused to hold that there was an onus on the Crown to prove the theft beyond a reasonable doubt, although he stated that he was "satisfied that a theft had occurred". In my opinion the stated case clearly demonstrates that Bence J.M.C. was "satisfied" but not satisfied to the degree of being satisfied beyond a reasonable doubt that Douglas had stolen the records. What was the requisite degree of proof?
19 The degree of proof that a party's conduct was criminal when such is raised in pleadings in a civil action is to be determined according to the "balance of probabilities" and not to the higher degree of "beyond a reasonable doubt": Hanes v. Wawanesa Mutual Insur. Co., [1963] S.C.R. 154 at 164, [1963] 1 C.C.C. 321, 36 D.L.R. (2d) 718. In criminal trials it is the duty of the Crown to prove the accused's guilt beyond a reasonable doubt: Woolmington v. Director of Public Prosecutions, [1935] A.C. 462 at 481-2. If at the end of the trial and on the whole of the case Bence J.M.C. had a reasonable doubt as to whether Douglas had stolen the records, then the Crown had not made out a case and the appellants should have been acquitted. The proof that Douglas had stolen the records was essential to confer on the informant the right to arrest her; and the onus was on the Crown to prove the theft beyond a reasonable doubt. Bence J.M.C. refused to hold that proof to this degree was required. In this he erred. If he had been satisfied that the theft was proved beyond a reasonable doubt he would no doubt have so found. He did not.
20 For the reasons above given the answer to Question 1 is "No", the theft not having been proved beyond a reasonable doubt. The answer to Question 2 is "No".
21 Learned counsel for the appellants advised the Court that the appellants are no longer in Canada and asked that the convictions be quashed and that no order be made for costs. Learned counsel for the Crown stated that if the appeal should be allowed the convictions should be quashed.
22 With respect to the appellant Orban, s. 30 of the Code may well be relevant.
23 The appeal is therefore allowed and the said convictions made by Bence J.M.C. reversed. If the fines and costs imposed by Bence J.M.C. have been paid such will, of course, be repaid by the respondent to the appellants and such may be paid to the appellants' solicitors on behalf of the appellants.
24 Under R. 9 of the Rules for Cases Stated I direct that the style of cause be amended to read in the same manner as the style of cause is set forth on the first page of this judgment.
