New citizen’s-arrest law greeted with applause, criticism

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Four years after Toronto Chinatown merchant David Chen made national headlines by chasing down a serial shoplifter only to be charged with assault and forcible confinement, his Lucky Moose Food Market is in the spotlight again, this time with its name attached to a Criminal Code amendment.

Not everyone was cheering.

Critics of the law that came into force on Monday, including the Canadian Civil Liberties Association and the 7,500-member Ontario Convenience Stores Association, swiftly voiced concern that its sweep is too wide, and that it could endanger those who act upon it.

Federal Justice Minister Rob Nicholson made an appearance at Mr. Chen's big Dundas Street West emporium to hail Bill C-26, the Citizen's Arrest and Self-Defence Act, which changes the law to allow people to make a citizen's arrest within a "reasonable" period of time after witnessing a crime.

But what's "reasonable" hinges on several variables, and the term is "fraught with some ambiguity," Osgoode Hall law professor Alan Young said.

Under the previous law, whether a crime involved shoplifting or anything else, a citizen's arrest was legal only if the perpetrator was caught red-handed.

That was Mr. Chen's undoing. In May, 2009, he and two colleagues chased down a man who, an hour earlier, had stolen plants from the Lucky Moose and later returned.

Trussed up with string until police arrived, the thief, whose actions were captured on videotape, was taken away and subsequently convicted.

But because of the time lapse, Mr. Chen's citizen's arrest was deemed improper. In October, 2010, he was acquitted amid a popular outcry that turned him into a kind of folk hero.

On Monday, he voiced delight at the outcome, adding that he wouldn't hesitate to pursue the thief again.

"I feel very good," he said after a photo-op with Mr. Nicholson. "I never thought what has happened would happen."

Peter Lindsay, his lawyer in the criminal process, praised the legislation. "Something that gives shopkeepers a little more leeway is certainly a good thing, because these guys work hard to make a buck and are victimized daily by criminals stealing from them," he said.

Police often don't make crimes such as shoplifting a priority, especially in cities, Mr. Lindsay said.

Among others applauding was Trinh Ngo, manager of the Outer Layer gift store on Bloor Street West, who recounts pursuing numerous thieves. "I think you should be allowed to [chase] them because sometimes you don't [detect] them until you review the camera at the end of the day," she said. "I don't think there's enough laws out there to protect shopkeepers,"

But Dave Bryans, CEO of the Ontario Convenience Stores Association, has no plans to urge members to detain criminals, because of safety concerns.

"We would not, under any circumstances, urge our employees to chase a car that's stealing gas, or jump over the counter to try and take the law into their own hands," he said. "How long is 'detain,' and what is 'detain?'...You don't know who you're chasing."

Bill C-26, dubbed the Lucky Moose amendment, had strong backing from Prime Minister Stephen Harper. It received royal assent in June.

"We don't support vigilantism, we're clear on that," Mr. Nicholson said. "But people have a legitimate right to protect themselves and their families and their property. The laws in this particular area were very much out of date. ... Those who have been the victim of a crime should not be re-victimized by the criminal justice system."

Toronto police, who laid the charges of which Mr. Chen was acquitted, declined comment.

"We don't comment on new laws," spokesman Mark Pugash said.

Prof. Young said he has concerns because the new rules are subjective, and the courts must still determine what time frame is reasonable.

"It's a slightly new regime that gives a bit more flexibility to the store owner," he said. "But it's fraught with some ambiguity, which is really problematic when you're dealing with private citizens exercising coercive powers. I like it in principle, but I'm not sure the drafting is that friendly for the store owner."

The Canadian Civil Liberties Association believes that the new law will mostly be used by private security guards investigating shoplifting in malls – and worries about possible abuses of power.

"The concern is that now it gives them the power to not only check whether you have something in your purse … now it will give them the power to arrest you on the grounds that they reasonably believe it was you yesterday, or two days ago, or last week, or this morning, who stole something. And the arrestee has very little ability to debate them," said Nathalie Des Rosiers, general counsel of the Canadian Civil Liberties Association.

"It's the abuse of the power that we're concerned about and whether it will on the ground lead to some excesses."

– Jill Mahoney