(file photo/paNOW Staff)

By Susan McNeil

Citizen's arrest valid

Northern Sask. woman convicted of theft, assault on security guard

Jul 6, 2023 | 3:34 PM

A Northern Saskatchewan woman is guilty of assaulting a grocery store security guard and stealing from the business.

Annette Custer is a member of the Peter Ballantyne Cree Nation and was detained by a security guard in a Saskatoon grocery store after he saw her stealing items, including a roast.

On June 29, Provincial Court Judge Q.D. Agnew told her he didn’t believe her claim that her rights had been violated in the subsequent citizens arrest and arrest by a Saskatoon Police Service officer.

“According to her own testimony on the voir dire and trial, she went with the intention to steal food. While there, she concealed a roast and other goods in her purse. She then deliberately left the store having paid for certain items, but not those concealed in her purse: those, she stole,” Agnew wrote in a decision released yesterday.

The store’s loss prevention officer, Cameron McMillan was in the building in plain clothes and wore a body camera equipped with audio.

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After watching her put the roast and other items in her purse and not pay for them, McMillan stopped her at the door and asked her to come with him.

In the ensuing conversation, Custer refused to go with McMillan and instead grabbed her keys.

He responded by saying she was under arrest for theft under $5,000, touching her upper right arm.

She refused and went to the ground after being compelled to by McMillan, at which point he tried to handcuff her.

His camera came off and was picked up by a bystander and from then on shows the two of them struggling.

Eventually, Custer got in the vehicle and tried to start it but was still being detained by McMillan. She then bit him. She was later arrested and charged by an SPS officer.

Custer’s defence was that although the arrest was valid when he touched her arm, McMillan used excessive force and so her charges should be dropped.

Agnew disagreed, pointing out that Custer was not free to leave after McMillan placed her under citizen’s arrest.

“At that point, as a legal matter she was no longer free to leave and he was entitled to use reasonable force to hold her for delivery to the police,” he wrote.

He also said she suffered no injuries, either “trivial or passing in nature” from being taken to the ground.

Given Custer’s continuous efforts to leave, McMillan did not use more force than was necessary to detain her, the judge said.

“The circumstances here included that Ms. Custer was under arrest, was continuing to resist, had punched Mr. McMillan in the face, was attempting to escape, had in fact dragged Mr. McMillan to her car with her, had climbed inside and was attempting to insert her key in order to drive off, biting him in the process. In those circumstances, the amount of force which Mr. McMillan used verged on being insufficient to accomplish the legal ends of effecting the arrest, detention and handing over of Ms. Custer; I certainly cannot find that it was excessive,” Agnew wrote.

Neither did he believe her argument that she thought she was defending herself when she punched him.

He convicted her of both charges. A sentencing date has been set for September.

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susan.mcneil@pattisonmedia.com