Reference no: EM133407683

Assignment:

David Chen immigrated to Canada and established the Lucky Moose grocery store in Toronto's Chinatown and Kensington area. Like many shopkeepers, he grew frustrated not only by shoplifters, but also by his belief that the legal system does not take that type of crime seriously. In an effort to protect himself, he installed video surveillance cameras in his store. On 23 May 2009, his cameras captured images of Anthony Bennett taking several plants from the Lucky Moose, loading them onto the handlebars of his bike, and riding away. That was business as usual for Mr Bennett, a lifelong criminal with 43 convictions for theft.

About an hour later, Mr Bennett returned to the Lucky Moose with the intention of shoplifting more goods. Before he could do so, however, Mr Chen calmly confronted him. When Mr Bennett dropped his bike and attempted to escape, Mr Chen and two colleagues called 911 and pursued Mr Bennett.

After catching up to him, they tied his feet and hands, placed him in the back of a van, and headed back to the Lucky Moose. The police then arrived, but to Mr Chen's surprise, he and his friends were arrested, strip-searched, held overnight in jail, and eventually charged with criminal assault and false imprisonment.

Mr Bennett was convicted of theft as a result of his actions at the Lucky Moose. The case against Mr Chen is far more interesting. He relied upon section 494(1) of the Criminal Code for his defence against the criminal charges.

(1) Any one may arrest without warrant

(a) a person whom he finds committing an indictable offence, or

(b) a person who, on reasonable grounds, he believes

(i) has committed a criminal offence, and

(ii) is escaping from and freshly pursued by persons who have lawful authority to arrest that person.

Questions for Discussion

1. Based on the law, do you believe that the Criminal Code allowed Mr Chen to arrest Mr Bennett? At the time of the arrest, did Mr Chen "find [Mr Bennett] committing an indictable offence" of theft? Did the shopkeeper "on reasonable grounds . . . believe" that Mr Bennett "had committed a criminal offence" and was "escaping from and freshly pursued by persons who have lawful authority to arrest" Mr Bennett? And even if Mr Chen was entitled to make an arrest under section 494(1), did he and his colleagues use unreasonable force?

2. How would you have reacted in Mr Chen's position? What if Mr Bennett returned to your store a week after you had seen him shoplifting? If you simply called the police, how quickly do you think they would respond? Do you think that if you asked him nicely, Mr Bennett would wait with you until the police arrived?

3. How would you react if people in your store were acting suspiciously and heading for the exit? Would you be entitled to arrest them as long as you honestly and reasonably believed that they had stolen goods stuffed into their jackets? Would it be safer to have your security guards arrest the suspected thieves?

4. As a result of the Lucky Moose case, Parliament changed the law to give property owners a greater power of arrest. Section 494(2) of the Criminal Code now says:

The owner or a person in lawful possession of property, or a person authorized by the owner or by a person in lawful possession of property, may arrest a person without a warrant if they find them committing a criminal offence on or in relation to that property and (a) they make the arrest at that time; or

(b) they make the arrest within a reasonable time after the offence is committed and they believe on reasonable grounds that it is not feasible in the circumstances for a peace officer to make the arrest.

Would that section have helped Mr Chen? Was it "feasible" for Mr Chen to have the police arrest Mr Bennett?