Saturday, October 24, 2009

Stop thief!

You have to feel sorry for David Chen. On May 23, Chen was minding his Toronto grocery store when a man stole $60 worth of plants. (This part of the story has never been explained to me. Really, who steals plants?) The man returned an hour later. Recognizing him, Chen and two of his employees chased the man down an alley, tied him up, put him in a delivery truck, and proudly waited for the police to arrive. When they did, they promptly arrested Chen for, among other things, kidnapping and unlawful confinement. (See here for the full story.)

The case has sparked plenty of controversy, some of it about Canada's law of citizen's arrest. The law basically allows anyone to arrest a person who is in the process of committing an indictable offence, or a person he believes on good grounds has committed an offence and is running away from (and being chased by) the police. (Section 494 of the Criminal Code.)

Coming out strongly in favour of the law, the Globe and Mail's Marcus Gee yesterday wrote:

"If someone can chase a thief down, tie him up and put him in a truck, why shouldn't he chase the thief through the streets in a car? Why shouldn't he follow him to his house, haul him out on the street and beat him into submission? Why shouldn't a dozen other shopkeepers go with him, bringing not only box cutters but baseball bats? Passions run high when people think they have right on their side, and things can easily get out of hand."

Normally, I like what Gee has to say, but this is a pretty flimsy straw man he's attacking. For one thing, an arrest isn't the same thing as beating someone into 'submission' - not a difficult distinction to draw in the first place, and one the law already makes with respect to police officers. More importantly, it's possible to narrowly define when a person may arrest someone for a crime that's already been committed. Australia, for example, permits a person to make an arrest for an indictable offence when it is not practical to proceed against the person by summons. The UK allows an arrest for an indictable offence that it would not be practical for a police officer to make. Either law would avoid the sort of cases Gee worries about. More to the point, if it wasn't practical for Chen to have called the police, and the theft was an indictable offence (which in Canada theft sometimes is), under either law Chen would have acted lawfully.

Canada's Immigration Minister, Jason Kenney, spoke last month about changing the law on citizen's arrest. If we do go down that road, let's start by looking at laws like Australia's.

1 comment:

  1. Thanks for this Adam. I've been following this story (Kinsella has had many posts on topic, supporting Chen). While I definitely share your concerns about the current Canadian law, I wonder if the Australian and British versions are a little too wide open. I think the scenario the Canadian law is attempting to avoid, is a confrontation that occurs much after a crime is committed; it's not hard to see how someone might try to affect a citizen's arrest many days after a crime has been committed, based on vague recollections. This can lead to mischief and violence. I think such arrests should be best left to trained authorities.

    That said, the Canadian law is too narrow: I don't see why the arrest may be affected only where the suspect is running away. I think all there needs to be is a time limit on when you can affect arrest. I would re-draft it thusly:

    S. 494(1) Any one may arrest without warrant...

    (b) a person who, on reasonable grounds, he believes
    (i) has committed a criminal offence, and
    (ii) and a reasonable period of time has not
    lapsed since the commission of said
    criminal offence.

    Of course, "reasonable" would be subject to judicial interpretation, or could be defined to provide concrete lines. I would say here, it could be 24hours.

    Re-drafting laws is fun...


Website Tracker