Chen, owner of a Toronto grocery store, and his employees were charged with assault and forcible confinement after they “arrested” Mr. Bennett, a well known, serial shoplifter.  Bennett had stolen from the store an hour before, and then returned for more.

At trial, the defence argued that a citizen’s arrest should not be limited to situations where a person is arrested at the moment he/she commits a crime. The Court agreed and ruled Chen and his employees were making a S.494 sanctioned arrest.

Per Khawly, Prov. Crt. J.: <2>
“What conclusion could a reasonable observer arrive at standing in Mr. Chen's shoes?  …:
1.    Viewing his surveillance camera sometime after Mr. Bennett's alleged theft, Mr. Chen can clearly see a black man on a bicycle with fairly distinctive clothing load up a bike with plants and depart.

2.    Within an hour and in the flesh this time Mr. Chen sees a man matching the same description on a similar bicycle arrive to the same area. …. To categorize this as a new incident — while likely technically correct — is putting the intention of Parliament in a straight jacket....

3.     Part of those new times is ubiquitous cameras, smartphones and other devices which capture our every action. All this should provide greater elasticity to the words 'finds committing' in S. 494. Those gadgets allow one to remotely see a theft in progress. If I accept the restrictive definition of 'finds committing' as urged by the prosecution, query whether one could make a citizen's arrest when the thief is only seen on a video screen in a backroom. By necessity a delay ensues. Realistically by the time it registers on the store owner that it is a theft in progress and the owner then makes it to the location, the theft is already completed and the person may even be — by then — away from the store.

Would the Crown still argue that the owner cannot make a citizen's arrest? If the response is that this is not the situation here, I firmly disagree.

4.     The one hour delay is a red herring — common sense informs here the words 'finds committing'. This was a continuing theft pure and simple. ….”
Section 494(2) presently reads: “Any one who is (a) the owner or a person in lawful possession of property, or (b) a person authorized by the owner or by a person in lawful possession of property, may arrest without warrant a person whom he finds committing a criminal offence on or in relation to that property. <3>