Many 91原创s were outraged when Toronto shop-owner David Chen was charged by police after he chased down a shoplifter and tied him up. Four years later, the federal government has leaped in to right the wrong, proving again that big events often make bad law.
On Monday, amendments to the Criminal Code took effect. Nicknamed the Lucky Moose amendment after Chen鈥檚 store, the Citizen鈥檚 Arrest and Self-Defence Act gives ordinary people wider latitude in making citizen鈥檚 arrests in protecting their property.
That wider latitude is an invitation to abuse.
In the past, someone like a store clerk could make a citizen鈥檚 arrest only if they caught a thief red-handed. In Chen鈥檚 case, the shoplifter had made off with some plants earlier in the day. When he returned in search of more loot, Chen summoned colleagues to give chase.
They ran down the offender and tied him up with string, then turned him over to the police. The thief had been recorded on video and was easily convicted.
However, the police charged Chen with assault and forcible confinement because he hadn鈥檛 caught the shoplifter in the act. He was acquitted in 2010.
The solution here is clear: The police and the Crown should have summoned up some common sense and used their discretion to let Chen go without charges.
Instead, the government changed the law so that anyone in possession of property can arrest a trespasser or thief if 鈥渢hey make the arrest within a reasonable time after the offence is committed and they believe on reasonable grounds that it is not feasible in the circumstances for a peace officer to make the arrest.鈥�
鈥淩easonable鈥� is a dangerous word to put into such a law. If a security guard sees a suspected shoplifter on the street two days after the offence, is it OK to make an arrest? How do ordinary citizens decide what evidence justifies collaring someone they suspect? And what are 鈥渞easonable鈥� grounds for believing police are not an option?
There is a lot of room for judgment, and citizens who stretch 鈥渞easonable鈥� too far could still wind up behind bars. The law could give people a false sense of their rights, and even encourage them to play police officer when it isn鈥檛 necessary or safe.
Chen鈥檚 actions notwithstanding, police, retail businesses and business associations say employees should not confront thieves. Let them take the money or the goods, then call the police with a good description.
Making a citizen鈥檚 arrest means physically confronting a person who is probably desperate and possibly armed. Most of us aren鈥檛 prepared or trained for that. And grabbing a baseball bat to even the odds puts us beyond the limits of reasonable force in protecting property.
Protecting ourselves rather than our property is a different matter, and the amendments do provide some changes to the law on self-defence. It gives judges a range of factors to consider in deciding if a person used reasonable force to protect self or others from an assault or threat of assault. The old section of the Criminal Code was too restrictive and caught people who common sense suggests were justified in defending themselves.
It is infuriating for law-abiding citizens to see their homes, possessions and livelihoods harmed by thieves or vandals who escape because police are too busy to catch them. At times, as in Chen鈥檚 case, the justice system must cut them some slack.
However, the property amendments in the new law are an overreaction that opens the door to vigilantism and exposes well-meaning citizens to danger from both criminals and the courts.
