Citizen Chen

Par Akil Alleyne le 3 décembre 2009

I have always believed that the citizens of a free society should not be punished for acting, within reasonable bounds, to protect themselves or their property from criminals. When the police are able to deal with the robber or attacker in a timely and effective fashion, the job should indeed be left to them. When this is not the case, individuals who are able to bring the perpetrators to heel in a responsible manner should not flinch from doing so. Nor should the state penalize them for doing what needed to be done, which officers of the peace may have been unable—or unwilling—to do.

As an ongoing travesty of justice in Toronto in shows, Canada’s criminal justice system would beg to differ.

It was last May that surveillance cameras at the Lucky Moose market in Toronto’s Chinatown captured a man stealing $60 worth of plants riding away with them on a bicycle. 51-year-old Anthony Bennett, a man with a petty crime rap sheet 33 years long, returned to the same store an hour later, presumably to help himself to some more merchandise. This time, however, he was confronted by the store’s owner, David Chen, and fled on foot. Mr. Chen and several store employees gave chase and caught Bennett, reportedly hog-tying him with twine and trapping him in a delivery truck until police arrived several minutes later. 

What happened next boggles the mind and makes a mockery of the very concept of justice. For apprehending the thief and restraining him until the authorities showed up, Mr. Chen was charged by police with unlawful confinement, assault, concealing a weapon (he happened to be carrying a box-cutter at the time), and kidnapping. Worse still, the perpetrator, who was originally supposed to serve a 90-day jail sentence at the prosecution’s request, was able to finagle a mere 30-day bid out of negotiations with the court—in exchange for testifying against Mr. Chen.

I would love to be able to say that the Crown did the “decent” thing by dropping the kidnapping and concealed weapon charges several months later. Unfortunately, decency had little to do with it. For the most serious charge, that of kidnapping, Mr. Chen would have had to be tried before a jury, where he almost certainly would have been acquitted. At any rate, the Crown initially offered to drop the more severe charges if Mr. Chen would plead guilty to assault and unlawful confinement—an offer he promptly refused. This plea bargain suggests that Crown prosecutor Colleen Hepburn’s eventual decision to drop the aforementioned charges anyway was not made as a matter of conscience.

The legal case against Mr. Chen is that in Canada, such “citizen arrests” are lawful only when the perpetrator is in caught in the act of breaking the law. Since Chen ran Bennett down before the latter was able to filch any more goods upon his return to the market, the argument goes, what he did was illegal. Yet it appears that this is less clear than the Crown and its sympathizers would have it. According to University of Alberta criminal-law professor Sanjeev Anand, Canadian legal precedent permits such citizen arrests if there is reason to believe that the perpetrator has committed an indictable offence. The surveillance camera footage of Bennett’s initial theft gave Chen that reason. 

Yet even if the Crown is right, Chen’s case raises an important normative question. Should Canada’s laws be amended, as Immigration Minister Jason Kenney recently mused, to protect this sort of citizen’s arrest from prosecution? I, for one, believe so, for I see nothing in Chen’s action that should be considered worthy of punishment under the law.

Did Chen and his employees truly “assault” Mr. Bennett in any meaningful sense of the word? I think not. They applied perfectly reasonable force in stopping him; they did not beat the stuffing out of him, as others would. Did they “take the law into their own hands”, as some have alleged? Hardly. They did not try to punish Bennett themselves, as real vigilantes do. They trussed him up—strictly to stop him from escaping—and turned him over to Toronto’s Finest at the first opportunity. 

Some argue, as the Globe and Mail columnist Marcus Gee did last month, that Mr. Chen endangered himself in pursuing the larcenous Mr. Bennett. What if the perp had pulled a knife or a gun on him? This flimsy argument, however, is annoyingly paternalistic in its implications. If an individual is willing to risk life and limb to catch a fleeing thief, that is his business. The government should not punish him for doing so in order to shield him from the potential consequences of his own actions. Eyewitnesses who report violent crimes or rescue their victims, or who testify against criminals in court, potentially make themselves targets for the perpetrators’ reprisal as well. Are they to be prosecuted for that?

“In such an encounter, anything can happen,” wrote Mr. Gee. “That's why we reserve the right of arrest mainly to police…Passions run high when people think they have right on their side, and things can easily get out of hand.” This, of course, overlooks the countless incidents in which things have spun far further out of control than they did in David Chen’s case, despite—and sometimes because of—police involvement. It also ignores the judiciousness Chen exercised by merely restraining Bennett until the police’s arrival. What’s more, since Bennett might have gotten clean away had he not been caught, Mr. Chen, if anything, did the police a favor. Had he handled this situation by the book, calling 911 when he caught the thief without giving chase, Bennett could have made a clean getaway before the police arrived.

Can law-abiding citizens afford to depend so heavily on law enforcement for their safety? In a perfect world, in which cops are irreproachable angels who always arrive in time to collar the crooks, this would be the perfect approach. In the world we actually inhabit, however, that is too often not the case. To require citizens to wait for police to rescue them, even when the latter are unable to do so until it is too late, is nothing short of unjust. In some situations, that could cost a victim his or her life. This is one major reason why the law permits, for example, the use of violence in self-defense: because police are not always well positioned to take care of business. Case in point: as Chen and countless fellow shopkeepers—who have rallied to his defence—have pointed out, Toronto police generally give shoplifting cases short shrift. Store owners’ tax dollars, it would seem, are not so hard at work.

This case relates to the larger issue of whether restricting individuals’ ability to help stop crime discourages them from acting in cases where such courageous intervention could save lives. In the 1989 École Polytechnique massacre, the men in a room commandeered by gunman Marc Lépine meekly obeyed his order to leave, allowing him to slaughter fourteen women left behind. Two summers ago, travelers in Western Canada fled a bus after one psychotic passenger savagely butchered another. (The RCMP, for their part, left the murderer alone on the bus for hours before boarding and arresting him, allowing him to decapitate and cannibalize his victim’s body.) 

A little retaliation on bystanders’ part might have at least mitigated these tragedies. Consider, for instance, the shooting at Virginia’s Appalachian School of Law in 2002, when a disgruntled student shot six people, killing three, including a school dean. Two other students ran to their cars to retrieve handguns from their glove compartments and confronted and disarmed the shooter. Such bravery need not be expected of all citizens—most of us are not cut out for such impromptu combat—but it is not to be punished either. It is easy to imagine how laws that discourage that kind of intervention could infantilize and enfeeble the citizenry, enabling or exacerbating such crimes in the future.

The case of David Chen revives the age-old question of the proper relationship between the citizen and the state. Free men and women should not have to entrust any aspect of their destinies—their health, safety, prosperity etc.—to the agents of government so slavishly. In most cases, yes, the boys (and girls) in blue should be the ones to bring the bad guys to justice. Yet there are times when John Q. Citizen must do his part—beyond cooperating with investigations, serving on juries or testifying in court—to take a bite out of crime. This includes cases in which John Q.’s livelihood is violated by someone whom he can apprehend with minimal violence and without usurping the legitimate role of the police. Citizen Chen does not deserve to be put on trial. If anything, the rest of us should consider taking a page from his book.

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