Arrest consists of the actual seizure or touching of a person’s body with a view to his detention. The mere pronouncing of words of arrest is not an arrest, unless the person sought to be arrested submits to the process and goes with the arresting officer. – R. v. Latimer,  1 SCR 217
The police may arrest people they suspect of breaking the law as long as their suspicion is reasonable. What about our right to arrest others? Can we stop and hold people who we catch stealing from us or committing other offences? What is the line between defending oneself and one’s property from the crimes of others on one hand, and committing the added crime of forcible confinement on the other hand?
The Asante-Mensah Case
In July 1991, Mensah was a “scooper,” a taxi driver not licensed for pick-ups at Pearson Airport in Toronto. At the airport, an inspector stopped him, touched his shoulder, and informed him that he was under arrest for trespassing and that he would be detained until the police arrived. Mensah shoved the inspector away and bolted.
Mensah had already been cited on 22 separate occasions for trespassing at the airport. He continued to do so, despite having received notice under the provincial Trespass to Property Act denying him entry for any purpose onto airport property. The inspector had the status of a “citizen” – as he had not been granted police arrest powers – but he was also conducting arrests as allowed by the Trespass to Property Act (section 9). The issue was whether the inspector could use reasonable force to make or continue an arrest under that provincial trespass legislation. The Supreme Court of Canada answered in the affirmative and Mensah was found guilty of assault with intent to resist arrest. (R. v. Asante-Mensah 2003, SCC 38 (CanLII))
The Chen Case
On May 23, 2009, David Chen and two of his employees were working at the “Lucky Moose Food Mart”, a popular shop in Toronto’s Chinatown district. Anthony Bennett, a known criminal, approached the shop. He helped himself to several plants and escaped on a bicycle.
About an hour later, Bennett returned to the same outdoor shop. This time, in the true meaning of shopkeeper, Chen and his employees chased him down (caught on video) and restrained him. They pinned him down, tied himand locked him in the store’s truck.
Police arrived when Chen was trying to relocate his truck with Bennett inside. Suspicious, they arrested both Bennett and Chen.
The Crown charged Chen with assault and forcible confinement. These criminal charges and Chen’s trial generated considerable controversy across Canada. He was a hero to some, not a criminal. Would the legal system victimize him again? How can a citizen defend himself and his property? Surely Chen was not the criminal in this case?
Bennett pled guilty for shoplifting and agreed to testify against Chen. He was sentenced to 30 days imprisonment.
Chen spurned a plea deal and went to trial. The evidence of Chen and his two co-accused employees was somewhat contradictory. For example, Chen first said he called the police, but it was later revealed an employee had done that. Language may have also been a factor as the trial judge did not find all of Chen’s evidence credible. However, in the end, the judge had a reasonable doubt and Chen was acquitted. (R. v. Chen et al., 2010 ONCJ 641)
Reform of the Law
Pursuing a thief to recover one’s stolen property is not new. The common law has recognized the right to defend one’s property since the 1600s. Citizens’ arrests also have long been part of the common law. Eventually, police forces were formed to better fight crime. As the Supreme Court of Canada said in Asante-Mensah: “the development of modern police forces brought a transfer of law enforcement activities from private citizens to peace officers. But it is the police officer’s powers which are in a sense derivative from that of the citizen, not the other way around.”
The Chen case caused many Canadians to think citizens’ arrests needed to more clearly embrace the protection of one’s own property. Pursuing a thief to recover one’s stolen property is not new. The common law has recognized the right to defend one’s property since the 1600s. As a result, each of the three major political parties presented private-member bills to reform the Criminal Code. Since the Conservative government had a majority, its reform was enacted. An amendment to the Criminal Code was passed in 2012 to clarify self-defence, defence of property and citizens’ arrests.
1. Self Defence
The distinction between provoked and unprovoked self-defence was dropped, as well as the need for a pre-condition of deadly force. Under the new legislation, one can defend oneself if:
- one believes on reasonable grounds that force is being used, or threatened to be used, against them or another person;
- the actions are defensive, and designed for protection against the other person; and
- the defence is reasonable, determined by all attendant circumstances such as the nature of the threat, the person’s role in the circumstances, the physical capacities of the parties and any previous interaction or communication prior to the incident.
2. Defence of Property
A citizen may lawfully take reasonable actions to defend his or her property only if there is a perceived threat of an unlawful entry or damage to the property. The owner of personal property may arrest a person without a warrant if they find them committing a criminal offence on or in relation to that property, and:
- they make the arrest at that time; or
- they make the arrest within a reasonable time after the offence is committed and they reasonably believe that it is not feasible in the circumstances for a police officer to make the arrest.
3. Citizens’ Arrests
Although Chen’s citizen arrest of Bennett was the incident that led to this prosecution and law reform on self-defence and defence of property, Parliament left the citizens’ arrest law largely untouched.
Section 494 (1) of the Criminal Code section authorizes an ordinary citizen who reasonably believes that an individual is committing or has committed a criminal offence or believes him to be escaping from lawful authorities to arrest that person.
Originally, the law allowed citizens to arrest a criminal suspect if they were reasonably certain of their guilt. Citizens could only arrest a suspect while they find him or her committing the crime or immediately afterward.
The new law removed the “immediate response” requirement. A “reasonable time after the offence is committed”can pass before the citizen’s arrest. Recall how Bennett returned to the shop an hour after he shoplifted and how Chen arrested him only at that time.
In all cases of citizens’ arrests, the citizen must immediately deliver that person to a peace officer.
This Criminal Code authority serves as a defence to criminal charges and tort claims relating to citizens’ arrests properly made.
Law in Other Countries
In Australia, the Commonwealth Criminal Code Act 1995 authorizes self-defence under reasonable circumstances. One may only use the necessary force to prevent the suspect from leaving, must leave evidence undisturbed, must leave the investigative process to the police, and cannot use lethal force under any circumstances.
In the United Kingdom, the Criminal Law Act 1967 stipulates that citizens’ arrests must be reasonable. This generally falls between the public interest in a responsible contribution on the part of citizens preserving law and order and vigilantism and violence. British Law does not allow preventive self-defence. One may defend oneself only after being attacked and may not initiate the violence.
In the United States, the “stand your ground” law operates in Florida and other states.
Postscript: Chen’s Celebrity Status
After his acquittal, Chen was in demand for interviews and photo-ops with eager politicians. In 2013, four years after his notorious shopkeeping arrest of Bennett, he received a Diamond Jubilee Medal.
Chen learned the meaning of restraint. The very day he was awaiting the verdict on his charges, he was the victim of another burglary. This time he refused to act on reflex. He called the police and passively waited for them to arrive.
This article described two separate judicial proceedings relating to citizens’ arrests. The Chen reforms turned out to be modest and would have made no difference in the Mensah case. Taken together, they are essential reading for business people and property owners, as well as ordinary citizens, in how to protect themselves from the crimes of others.