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Toronto store owner David Chen is on trial for forcible confinement and assault. (Della Rollins for The Globe and Mail/Della Rollins for The Globe and Mail)
Toronto store owner David Chen is on trial for forcible confinement and assault. (Della Rollins for The Globe and Mail/Della Rollins for The Globe and Mail)

Judge to rule Friday in vigilante shopkeeper case Add to ...

It took mere seconds for Anthony Bennett, career criminal, to steal 11 hours worth of honest labour from David Chen.

Such is the calculus of working life on the sidewalks of Toronto's Chinatown, where merchants like Mr. Chen toil 100 hours a week for less than minimum wage between short naps on cots, while thieves like Mr. Bennett buzz about them like wasps, snatching $6 houseplants to sell for quick-and-easy drug money.

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The aftermath of a May, 2009 collision of these disparate, desperate lives is now in the hands of Mr. Justice Ramez Khawly. The judge will decide Friday whether Mr. Chen and two workers at his Lucky Moose grocery are criminals for having chased, tied up and kept Mr. Bennett in a delivery van after he stole a dozen money tree plants, worth $72 in all, from the sidewalk outside the shop.

While there seems to be no question in the court of public opinion as to who is the real criminal, Judge Khawly will have to weigh carefully whether Mr. Chen, 37, along with subordinates Qing Le and Jie Chen, acted reasonably in nabbing Mr. Bennett, 52, that day.

The Crown, obviously, thinks not.

"Of course shopkeepers are entitled to protect their property … but that's not what happened in this case," prosecutor Eugene McDermott told a crowded courtroom at Old City Hall on Monday. "[Mr. Chen]seized a person off the streets of this city, tied him up and threw him into the back of a van."

During the trial, court heard that Mr. Bennett was recorded on security video stealing the plants at about 12:20 p.m. When he returned to the Lucky Moose an hour later, Mr. Chen approached him and asked him to pay for them, but he refused, denied the theft and took off running.

Mr. Chen gave chase and Jie Chen followed. A delivery driver from their store happened on the scene and pulled up to block Mr. Bennett, and Mr. Chen tried to grab him. When Mr. Bennett lashed out with punches and kicks, they tied his feet and hands, then put him in the van for the short ride back to the store, where they would turn him over to police, court heard.

Meanwhile, several area residents called 911 to report what looked to them like an abduction and possible beating. And so, when officers on foot confronted the van near the shop moments later and Mr. Bennett's captors stepped out, they were arrested and charged with assault and forcible confinement. Kidnapping and weapons charges were later dropped.

Mr. McDermott, recalling witness testimony and transcripts of 911 calls, argued that Mr. Chen and his workers were no longer protecting property once Mr. Bennett started running from the store, and therefore were not preventing a crime, as required for a lawful citizen's arrest.

The prosecutor said there was "no reason" for them to put Mr. Bennett in the van once he was bound, and that their failure to call police to help them should also raise concerns.

But Peter Lindsay, lawyer for the three men, said everything they did was a "measured and appropriate" response to Mr. Bennett escalating the situation - first by returning to the store after stealing, then denying it when approached peacefully by Mr. Chen, refusing to pay, running away and then resorting to violence once caught.

"The actions of the defendants were reasonable given what they were dealing with, and given the actions of Mr. Bennett," Mr. Lindsay said, adding that the chase and capture began and ended in a scant five minutes.

"Are they supposed to take time out from struggling with Mr. Bennett to call the police?" He asked. "That seems to be expecting far too much."

As for what witnesses may have thought they were seeing, Mr. Lindsay said they saw only parts of the incident and not the full sequence of events leading to the chase and capture of Mr. Bennett, whom he called "the author of his own misfortune."

A short time after the trial ended Monday, Mr. Bennett appeared briefly by video link in another courtroom, on five more charges of theft of plants from a Kensington Market shop over the spring and summer. He was remanded in custody at the Don Jail until Nov. 1. Outside court, members of the Chinese-Canadian community quietly demonstrated in support of Mr. Chen and his co-accused, while two federal members of Parliament touted respective private member's bills calling for Criminal Code amendments to shore up the rights of citizens who make arrests.

Joe Volpe, a Liberal, and Olivia Chow of the New Democratic Party both said Mr. Chen has been "victimized twice," first by Mr. Bennett and now by the Crown, for simply defending his livelihood.

"It's a very minor amendment, and if [Prime Minister]Stephen Harper doesn't want to see hard-working store owners getting punished and criminalized, he needs to take action," Ms. Chow said.

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