Citizen's arrest law past due

Amendments to Canada's Criminal Code rarely earn a catchy nickname. But what's been dubbed the "Lucky Moose" bill was proclaimed into law late last month, enacting changes to the law of citizen's arrest, defence of property and self-defence. The changes, long overdue, simplify laws everyone, from police to the Supreme Court of Canada, has criticized as unwieldy and confusing.

Enlarge Image

(DALE CUMMINGS / WINNIPEG FREE PRESS)

Some of the changes have their genesis in the 2009 case of Toronto Lucky Moose Food Mart owner David Chen, who, with two employees, apprehended a thief they'd witnessed shoplifting, but who got away. When the thief returned to the store an hour later, Chen and the two employees grabbed the guy, tied him up, tossed him into the back of a delivery van and called the police.

The career thief (43 prior convictions) pleaded guilty to theft and was sentenced to 30 days in jail. But, in the interim, Chen and his employees were charged with kidnapping, forcible confinement, assault and carrying a concealed weapon (a box cutter used to open shipped goods). The prosecution later dropped the kidnapping and weapons charges but went to trial on the other two charges.

Most people thought it preposterous that charges were laid, let alone tried. The Criminal Code, however, tied the hands of the police and prosecution. The law as written authorized Chen as the store owner to make a citizen's arrest only if he found the shoplifter committing an offence. Because he arrested the thief not during the theft, but after he'd returned to the store, it was an unlawful arrest. Ultimately, the trial judge did a chop-logic dance around the facts, and the law, and acquitted Chen and his colleagues.

Byproducts of the case are the present amendments. They provide that a store owner no longer need catch thieves red-handed to arrest them, but can nab them "within a reasonable time thereafter."

Allied to this change are amendments to the Criminal Code's defence-of-property provisions. The Lucky Moose bill has replaced five code sections, some of which dated back to the 1840s, with a single streamlined provision.

Gone are laws that permitted a homeowner to use one degree of force to protect his residence but a lesser degree of force to stop a thief doing a grab-and-run with a microwave or computer. Likewise gone are confusing provisions that permitted one degree of force to be employed against a thief, but sanctioned an escalated degree of force if the thief also assaulted you.

Replacing these unduly technical distinctions about what a person can or can't do in defence of his or her property is a provision that permits reasonable use of force to prevent property being stolen, damaged or destroyed. What's reasonable depends on the particular factual circumstances and is left to the courts to determine. But reasonableness is a flexible and proven test, one courts routinely apply to make decisions.

Enlarge Image

DALE CUMMINGS / WINNIPEG FREE PRESS (DALE CUMMINGS / WINNIPEG FREE PRESS ) Photo Store

The law of self-defence has undergone a similar rationalization. Almost two decades ago, former Chief Justice of the Supreme Court Antonio Lamer labelled our self-defence laws as "deserving of much criticism." They "overlap, and are internally inconsistent."

Now, four sections of the Criminal Code that prescribed what, when and how you can defend yourself from attack have been jettisoned and replaced by a single self-defence provision. Eliminated, too, are problematic distinctions between provoked and unprovoked attacks, and intention, or not, to use deadly force.

The Lucky Moose amendments permit anyone who reasonably believes himself or others to be at risk of attack to commit a reasonable act to protect himself or those others. What's reasonable is again left up to the courts to determine, but the amendments provide a non-exhaustive list of factors for the courts to consider.

These amendments are a welcome revision to the criminal law. Reorganization of our citizen's arrest, defence of property and self-defence laws into a clearer, more rational framework was past due.

Republished from the Winnipeg Free Press print edition July 14, 2012 A14