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Treason a reason for citizen arrest

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The Citizen's Arrest and Self-defence Act, which amends Canada's Criminal Code to allow a citizen's arrest within a "reasonable" period of time after a crime occurs, came into force this week. Prior to the amendments, a felon had to be caught red-handed for a citizen's arrest to be lawful.

The amendments were dubbed the "Lucky Moose" bill, after Toronto's Lucky Moose food mart, whose owner was charged with assault and forcible confinement in 2009 after he and two employees chased down, tied up and held a shoplifter until police arrived. The store owner, David Chen, had witnessed the career thief (43 prior convictions) steal from his store earlier that day, but he'd gotten away before Chen could act. When the shoplifter returned an hour later, Chen nabbed him.

The case became a cause célèbre when the Crown attorneys' office prosecuted Chen for trying to protect his property. He was acquitted at trial.

The amendments have attracted their share of criticism. Critics contend the bill encourages victims to take the law into their own hands. The Canadian Civil Liberties Association sees it as leading to "forms of vigilantism."

But the Lucky Moose amendments aren't the only citizen-as-cop provision in the Criminal Code. In fact, they pale beside our treason law. Because, where there's an alleged crime against the state, the law deputizes us all.

The exercise of citizen's-arrest powers is voluntary -- you can, as ever, forget about apprehending a thief and just call the police. Our treason law, however, dictates that you must get involved with the crime-in-progress.

The Lucky Moose amendments also have the benefit of, logically, involving only the players in a crime -- the victim and offender. Our treason law ropes in witnesses, too, and turns them into criminals if they don't do something to foil the plotters.

In short, the Criminal Code makes it compulsory to protect the state, whether you want to or not.

An example: You're sitting in a local doughnut shop one morning, sipping your coffee and munching your muffin, minding your own business. Then, two tables over, you hear a couple of guys plotting what sounds like a crime.

Do you have a legal duty to report them to the police? Or to stop them from carrying out their plan? If they're working up a break and enter, a drug deal or a robbery, the answer is "No."

But if it's treason they're scheming, you're obligated to report them to the police, or to attempt to thwart their plot. If you don't, you're guilty of a criminal offence. Sec. 50 (1) (b) of the Criminal Code of Canada makes it a crime punishable by up to 14 years imprisonment if you neglect your citizenly duty to report, or stop, them.

Nowhere else in our law is there an affirmative duty, coupled with a major-league criminal penalty, either to warn police or personally confront would-be offenders -- not even if what's being plotted is murder.

A duty to report to authorities -- and merely report -- a criminal plot may in and of itself not be a bad idea. However, applying it to treason, is.

Treason is one of the most nebulous crimes in our Criminal Code. Lawyers, judges and legal academics have written volumes about where legitimate political protest ends and treason begins, and when acts of civil agitation morph into revolutionary insurrection.

It's also a notoriously elastic crime -- one that suddenly loses its criminality when there's a regime change or the political winds blow a different direction. Sixteenth-century English courtier Sir John Harington's famous epigram -- cited in several judicial decisions -- nicely catches its pliability:

Treason doth never prosper:

What's the reason?

For if it prosper,

None dare call it treason.

Nonetheless, the Criminal Code requires anyone sitting in a doughnut shop to rush to judgment, decide whether it's a crime against the state being discussed two tables over, and leap into action -- or maybe not.

That the state's coercive power is so heavily brought to bear, not against wrongdoers, but mere witnesses, underscores the law's transparent result: It doesn't target crime, it creates political crimes. Worse yet, it makes criminals out of innocent bystanders.

Sec. 50 (1) (b) is an utterly unprincipled provision. It so overreaches the acceptable limits of criminal law that it's an embarrassment.

In the late 1980s it was on the political radar map for repeal, but it disappeared from view.

It's possible, over time, that on the ground there will be instances of excess in applying the new citizen's arrest law. But, next to our treason law, its reach, and objects, are pretty modest.

Douglas J. Johnston

is a Winnipeg lawyer.

Republished from the Winnipeg Free Press print edition March 16, 2013 A14

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