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Marcus Gee

Citizens who arrest aren't above the law Add to ...

At first glance, the prosecution of Chinatown merchant David Chen seems outrageously unfair.

Mr. Chen was minding his grocery store on the morning of May 23 when a man stole $60 worth of plants. When the man returned an hour later, Mr. Chen allegedly chased him down an alley, tied him up and put him in a delivery truck.

The shopkeeper thought he was doing a good deed, but when the police arrived, they arrested Mr. Chen along with the thief. They charged Mr. Chen and two employees with assault, kidnapping, unlawful confinement and carrying concealed weapons. (Mr. Chen was carrying a box cutter.)

Mr. Chen believes it is a travesty of justice. Thousands of people who have signed a petition on his behalf agree. So, apparently, does federal Immigration Minister Jason Kenney, who called Mr. Chen a victim when he visited him last month and announced the federal government was considering a change in the law on citizen's arrests.

But before we go down that road, let's stop and think for a minute. There are reasons that the law puts limits on the right of ordinary citizens to arrest others. To begin with, it is dangerous. What if the thief was carrying a knife or a gun when Mr. Chen caught up with him? What if Mr. Chen himself got carried away and wounded or even killed the thief? In such an encounter, anything can happen. That's why we reserve the right of arrest mainly to police.

The broader danger is that citizens will start taking the law into their own hands.

Mr. Chen's lawyer argues that Ottawa should change the law to let anyone arrest a person they suspect, on "reasonable and probable grounds," of having committed a crime, even if the crime is not taking place at that very moment. If someone can chase a thief down, tie him up and put him in a truck, why shouldn't he chase the thief through the streets in a car? Why shouldn't he follow him to his house, haul him out on the street and beat him into submission? Why shouldn't a dozen other shopkeepers go with him, bringing not only box cutters but baseball bats? Passions run high when people think they have right on their side, and things can easily get out of hand.

That is why authorities around the world put strict limits on citizen's arrest. In most jurisdictions, they must have reasonable grounds to believe a crime is being committed or has just been committed; they must use only necessary force in the arrest; and they must deliver the person to police as soon as possible.

In Canada, the law allows you to arrest a person who is committing an indictable offence - that is, a major crime such as auto theft or sexual assault. It allows you to arrest a person who is being chased by police. And it allows you to arrest a person who is stealing or damaging your property. It does not generally allow you to arrest someone after the fact. In that case, you are supposed to call police.

It's fine to feel sympathy for Mr. Chen, a hard-working immigrant who was merely trying to protect his livelihood. He and his fellow Chinatown merchants have a legitimate complaint when they say that police in this city are too casual about petty crime. While authorities have to attend to the big stuff first, trust in them crumbles when they brush off the smaller crimes that drive law-abiding people like Mr. Chen around the bend. In that sense, they must share the blame for what he did.

But when people take the law into their own hands, they endanger not only themselves but the slender line that divides the law of the land from the law of the jungle. That is why it is right to put a high fence around the power of citizen's arrest.

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