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Shopkeeper learns his lesson in acquittal

Freed from the clutches of the criminal justice system, David Chen has returned to his Lucky Moose market a little wiser and a lot more careful about how he deals with shoplifters, a constant scourge in Toronto's Chinatown.

Less clear is what Toronto police will take away from the Chen case, which ended in acquittal for the shopkeeper and two employees, Qing Li and Jie Chen. The three men were cleared of assaulting and forcibly confining Anthony Bennett, a 52-year-old drug addict with a long record for petty crime. They chased, bound and detained Mr. Bennett in a van after he stole plants from the Lucky Moose in May of 2009.

Citing "reasonable doubt" about the events of that day, Mr. Justice Ramez Khawly told a packed courtroom he was forced to acquit the men, despite grave concerns about their actions and credibility.

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But in his long, colourful judgment, Judge Khawly also highlighted a claim made at trial that he said was overshadowed by the more compelling narrative of Mr. Chen as humble-merchant-turned-crime-fighter: that police ignore minor crime in Chinatown, leading some to take the law into their own hands.

"Is Chen's community sending a message of vulnerability in the face of perceived police inaction?" the judge asked. "However unfair or unfounded, is that not really what stoked the embers of this case?"

Citing the "broken windows" theory, by which communities lose faith in the rule of law when minor crime goes unpunished, the judge suggested Mr. Chen "tried to fill the void where the justice system failed," and asked, "could Chen, after all, not be the canary in the coal mine?"

Mark Pugash, spokesman for Toronto police, said he understands the concern, but insisted that police take theft seriously; it's just a matter of prioritizing calls.

"I have no doubt that if I were a merchant being plagued by that, I'd want to be able to pick up the phone and I'd want people to be there immediately, [but] most people understand we have to prioritize our calls," Mr. Pugash said. "So if we get a call that you're getting beaten and we get another call that says, 'Someone stole something from me,' I think people would want us to treat crimes of violence or threat of violence more seriously."

The violence of Mr. Bennett in resisting capture was raised at trial by defence lawyer Peter Lindsay, who argued Mr. Chen and his workers responded with reasonable, measured force to repeated escalations by the punching, kicking, thrashing thief.

Judge Khawly, however, seemed to have more sympathy for Mr. Bennett's position – that being tied up and tossed into a van is excessive – than for Mr. Chen's testimony, which he said was marked by "evasion, contradictions and hardly credible assertions."

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On the key issue of whether Mr. Chen was within his rights to apprehend Mr. Bennett at all, however, the judge was unequivocal in finding the capture met the definition of a citizen's arrest. Crown prosecutor Eugene McDermott had argued Mr. Chen had no such right because Mr. Bennett had simply returned to the store an hour after the theft, and thus was no longer committing a crime.

Judge Khawly called the one-hour delay "a red herring," and said Mr. Bennett's return to the store constituted "a continuing theft, pure and simple."

The judge said the Crown was right, however, to question the force the three men exerted in detaining the lone, physically slight Mr. Bennett.

In the end, having found credibility problems with Mr. Chen, Mr. Li and Mr. Bennett, the judge came to a verdict based on a simple and familiar concept: "I have a reasonable doubt," he said, and "all such doubts must go in favour of the defence."

Before he left the courtroom, cheers erupted from a gallery filled with members of Toronto's Chinese-Canadian community, who followed a beaming Mr. Chen out of Old City Hall to greet a throng of reporters.

Flanked by his local MP, Olivia Chow, and his lawyer, he said, "I feel very, very good" in uneasy English. He said business has increased at his small grocery, as "so many people are coming down to see me" after hearing about his legal plight.

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Asked how shopkeepers should handle thieves, however, Mr. Chen clearly drew on lessons from his brush with the justice system.

"The advice is, be careful, call the police early, as soon as possible," he said through Ms. Chow, who interpreted for him.

Later in the day, Ms. Chow, who has her own private member's bill asking Parliament to broaden citizen's arrest laws, said Friday's ruling means there's even more reason to change the legislation.

"[The Crown's case against Mr. Chen] was dismissed because it wasn't proven. It could happen again to someone else," she said, adding that if she can't get unanimous consent on her bill next week "then the ball is in Stephen Harper's court. The Conservatives cannot allow hard-working store owners to be treated like criminals."

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