By Brian Robertson
In May of this year, a merchant in Toronto’s Chinatown district arrested a shoplifter. The shoplifter plead guilty to theft and served a 30-day sentence. The storeowner, David Chen, has been commended by many people, including federal Immigration Minister Jason Kenney, who visited him at his store for a photo op in September.
By Brian Robertson
What made this arrest controversial, however, is that Chen was also
charged with various offences, including assault, kidnapping, forcible
confinement, and carrying a concealed weapon. This because he chased
the shoplifter down, forcibly detained him, tied him up, and put him
into the back of a van to hold him for the police. (The “weapon” in
question was the boxcutter that he uses for work and had in his fanny
pack.) Chen has plead not guilty, and his case is before the courts.
When this case hit the media this spring, the debate in the halls of
public opinion suffered a lot from widespread misunderstanding about
the concept of citizens’ arrest and how it works. But by autumn the
central legal issue in the case had become clearer. Chen’s mistake was
that he failed to arrest the shoplifter at the time of the shoplifting
incident. He initiated the arrest only after the perpetrator had
committed the theft, gone away to stash the stolen goods, and then
subsequently returned to the store.
There are a lot of social issues at play in this case. But the central
legal issue isn’t whether or not Chen used excessive force, or whether
the police made a mistake in judgement, or even whether the police are
providing a satisfactory level of protection to Chinatown merchants.
The central legal issue is whether or not the wording of Section 494 of
the Criminal Code of Canada — which only permits an ordinary person to
arrest someone who he or she “finds committing” an offence — is too
Chen’s lawyer is arguing that the wording of Section 494 is
“unconstitutional.” The victims’ rights group which was formed to
support Chen is petitioning Federal Attorney-General Rob Nicholson to
amend section 494. Minister Kenney told Chinatown merchants that he’d
take the issue up with his colleagues in Parliament.
Should the wording of Section 494 be broadened? And if so, should
private citizens have the same authority that police do — to arrest
anyone who they have reasonable grounds to believe has committed an
offence. Or does Chen’s case suggest a middle ground? Could a private
citizen be given the authority to arrest anyone he or she has
reasonable grounds to believe is a person who previously found
committed an offence? Or should there be a new sub-section added to
494, creating a more beefed up authority to make arrests, but just for
retailers and their representatives?
The correct answer is behind Door No. 2. It would be completely
unworkable to extend “reasonable grounds” to every person in the
country, and a special arrest authority just for shopkeepers isn’t ever
going to fly, constitutionally-speaking. But Chen’s case points out
something that anybody in security who has ever tried to arrest a
shoplifter already knows ”“ that it is illogical for the law to say (as
it presently does) that you can arrest a suspect as long as you can
keep him in your sights continuously from the time of the crime until
the time of the arrest, but that your authority to make the arrest
evaporates if you lose sight of him for even a short period of time.
There’s a lot of confusion and misunderstanding around citizens’
arrest. It would be a timely development if the Attorney-General
initiated a serious review of Section 494, and asked whether or not it
needs to be updated. The answer he would get ”“ from the retail
community, from police leadership, from police unions, and from the
private security industry ”“ would be a resounding yes.
There will of course be intense differences of opinion about what
direction the law on citizens’ powers of arrest needs to move in. But
it needs to move.