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David Chen outside the grocery store he owns on Dundas Street in Toronto's Chinatown.

Charla Jones/Charla Jones/The Globe and Mail

When a storekeeper catches a serial thief shortly after a larceny, holds him and waits for police to arrive, he is acting within his rights as a citizen. Yet Toronto police have laid several charges, including unlawful confinement, assault and even kidnapping (that charge has since been dropped), against a small grocer, David Chen, and his employees who did just that.

Mr. Chen committed no act of vigilantism. He acted in the interests of public order. If ever a case cried out for Crown discretion in refusing to lay a charge, it is this one. There is no public interest in prosecuting Mr. Chen.

Is there evidence that Mr. Chen and his employees used disproportionate force when they caught Anthony Bennett, a thief with a criminal record stretching back 30 years? They tied him up, but he had been running away. Is there evidence that they held Mr. Bennett for longer than necessary? Apparently not. According to Mr. Chen's lawyer, police were contacted immediately after the citizen's arrest, and arrived within a few minutes to apprehend Mr. Bennett. There is nothing outrageous here.

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This is nothing like the cases in other parts of Canada that have brought criminal charges. Sanjeev Anand, a University of Alberta criminal-law professor, says charges have been laid where private citizens beat suspects, or took them on a ride, or hung them upside down, or shot them. The only shocking thing about the Chen case is the laying of charges. (Most egregious, a court transcript shows that Mr. Bennett received 30 days in jail, rather than the 90 requested by the Crown, because he said he would testify against Mr. Chen.)

Imagine a jurisdiction in which citizen arrests were not tolerated. Would it create a more law-abiding society, more reliance on police? No, it would embolden criminals, and heighten the possibility of vigilantism. It is sound policy to allow citizens to have a limited role in protecting public order.

Was Mr. Chen charged, as some reports suggest, because he didn't nab Mr. Bennett in the very act of his theft? Case law in Canada supports the view that a citizen who has reasonable and probable grounds to believe that someone has committed an indictable offence (which includes theft) may make an arrest, says Prof. Anand. In this case, a security video had caught Mr. Bennett in the act.

If this citizen's arrest is deemed intolerable, when is one allowed? Mr. Bennett had come back to the very store he had robbed an hour earlier. Faced with a brazen thief, Mr. Chen apprehended him within the law - any sensible vision of the law - and called police. Police should make most arrests, but they should not have a monopoly on them.

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