Citizens arrest

2011-02-01

in Law, Politics, Rants, Toronto

There are good reasons why we restrict powers like arrest to trained agents of the government. While there are certainly many problems with the conduct of police and oversight over them, at least they have training and experience and there are mechanisms in place to evaluate their actions. By contrast, empowering every shopkeeper and random citizen to physically detain people who they think are criminals seems dangerous and unnecessary. In a few cases, it may be the least bad option available, but I think the onus should be on the person performing the arrest to justify it later.

In the grand scheme of things, shoplifting seems a lot less significant than physically detaining somebody against their will. Saying that as soon as somebody steals from you, you have the right to effectively kidnap them seems liable to create harm and abuse. Kidnapping is rightly considered a more serious offense than shoplifting, and I don’t think the fact that someone committed a crime before being thus apprehended has all that much legal or moral significance. It smacks of the sort of crude revenge-based legal systems where people get their hands lopped off (or get thrown into the terrible conditions of prison, but that is another discussion).

That’s why I think it is wrongheaded when people argue that David Chen – the Toronto shopkeeper who physically detained a shoplifter – should never have been criminally charged. When you opt to take the law into your own hands, you are effectively claiming that the situation is so important and so urgent that you should take over from the actual authorities. It seems to me that such cases are rare and involve things like real risks of injury or death – not the danger of losing a few dollars worth of merchandise.

If you feel that you need to usurp the powers of the police, it just seems sensible to expect that you may need to justify that choice in a court of law. They may well find that you behaved reasonably. But the fact that there will be some after-the-fact oversight could in itself act as a minor deterrent to abuses of power.

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{ 25 comments… read them below or add one }

oleh February 2, 2011 at 4:50 am

Prior to this blog entry I had not heard or read of the Chen matter. I proceeded to read a few articles on line. The incident occurred in 2009. The judge acquitted Chen on the basis that a reasonable doubt was found. However he also is commented on saying Mr. Chen was not straightforward.

I would like to have seen more as to why he was acquitted. Tieing the thief up and putting him in a van seems extreme. Can anyone provide a link to the reasons for judgement?

What bothers me is the apparent political opportunism that that has followed. The articles referred to both Olivia Chow, an NDP member, trying to obtain all party support for a bill presumably to extend the powers of citizen arrest. The Prime Minister of the Conservative Party had a ten minute meeting with Chen prior to a Chinese New Year banquet and advised that the laws would be changing in a few weeks.

R.K. February 2, 2011 at 4:19 pm

Does it make any difference if someone has been stealing over and over, and the police have refused to deal with the issue? Is a shopkeeper then more justified in forcibly detaining someone?

Tristan February 4, 2011 at 2:42 pm

I think citizens need special rights to take the law into their own hands in situations where those who’s institutional role is to enforce the law use their position to break it. Citizens arrest of police officers who break the law should be the first place we accord rights of arrest to non-state actors.

Matt February 4, 2011 at 8:04 pm

Citizens arrest of police officers…

How do you propose someone arrest an armed cop?

R.K. February 7, 2011 at 10:21 am

Letting citizens try to arrest police officers does not seem likely to improve police conduct or public confidence in the police.

Mandatory videotaping of police interactions with the public seems more likely to encourage officers to behave well, as well as improve the odds that they will be prosecuted when they commit crimes.

Milan February 7, 2011 at 6:46 pm

Can anyone provide a link to the reasons for judgement?

Would these be online? What court was Chen tried in?

. February 7, 2011 at 6:47 pm

In a cliffhanger ruling that mixed references to film noir and pulp fiction, Justice Ramez Khawly of the Ontario Court of Justice took two hours yesterday, in a court packed with 100 people, to get to his decision: David Chen, the vigilante grocer, is not guilty on all charges.

. February 7, 2011 at 6:48 pm

But while acquitting the grocer, the judge made an impassioned plea in favour of “this cauldron masquerading as a courtroom” and the justice system as a whole, peppering his exhaustive remarks with references to James Cagney, Frank Capra, Richard Nixon, Emile Zola and George Orwell.

The judge marveled at the press coverage of what he called a “relatively mundane matter,” noting that, “3,000 miles away, the Vancouver Sun asked, ‘Why an honest grocer struggling to make a buck became a target of punishment,’ ” — a reprint of words I wrote in the National Post.

The judge compared press reports of Mr. Chen’s arrest to the French writer Emile Zola’s famous “J’accuse” letter in a Paris newspaper in the 1890s, with its “demands for Captain Alfred Dreyfus’s return form Devil’s Island. Zola accused the French army of anti-Semitism.”

Police responded to a 911 call of a man being abducted on the street, the judge noted. Officers ordered the three grocers to the ground, handcuffed them, took them to the station, strip-searched them, and held them overnight for a bail hearing.

“It is on those very facts that police have been pilloried,” he said. “Is the criticism justified? Toronto the Good, like any other big city, has an underbelly that does not lead itself to a tourism marketing jingle. The Toronto Tourism and Convention Bureau do not employ the Toronto police.”

He concluded that police behaviour was reasonable, given that “they knew only a likely hostage was in the back of a van being spirited away in broad daylight.” Even so, because of repeated attacks by the press, “some police looked like they were headed to the scaffold rather than the witness stand,” and added, “some police spoke with such a low voice that one worries how they exert moral authority on the streets of Toronto.”

. February 7, 2011 at 6:49 pm

A collection of judgments of the Ontario Court of Justice, primarily released after April 1, 2004, is posted on CanLII. The CanLII website is not an exhaustive source of judgments of the Ontario Court of Justice. The official version of the reasons for judgment is the signed original or handwritten endorsement in the court file. In the event that there is a question about the content of a judgment, the original in the court file takes precedence.

Copies of judgments of the Ontario Court of Justice can be obtained by contacting the respective court office where the matter was heard. A photocopy charge is payable.

Judgments of the Ontario Court of Justice are also available on a number of subscription based services such as LexisNexis® Quicklaw™ and Westlaw Canada.

Milan February 7, 2011 at 6:50 pm

Does any reader have a subscription to one of the legal subscription service like those listed in the comment immediately above?

alena February 9, 2011 at 2:36 am

Citizens arrest of police officers…

The purpose of arrest include:
1. identification of the perpetrator of a crime
2. deterrence of further crimes.

Both reasons have less application to police officers as:
1. their identity is readily ascertainable as they have name tags/or badge numbers, their location is generally always known to the authorities and it is a small defined subset;
2. Police officers already strong incentive to avoid the commission of crime – the consequences are so much greater on them Unlike most citizens, if a police officer is found guilty of a crime, he is much more likely to lose his job.

oleh February 9, 2011 at 2:37 am

Sorry, the last entry was from me.

Matt February 9, 2011 at 3:58 am

To play devil’s advocate, many of the police during the G20 hid their identities. In fact, I believe it has been stated more charges against the police would have been laid if only their identities had been known.

I think it’s unlikely that citizen’s arrest of police in Canada would ever be a needed option. However, I certainly think there is a good case for more oversight. Confidence in police is at an all the Canadian low, and deservedly so. G20, the airport tasing (and subsequent drunk driving killing by the supervising officer), the Kelowna boot to the face, the recent taser to the crotch interrogation method, etc, etc adds weight to the idea that there is a culture in Canadian police forces whereby the members think they are above the law.

Milan February 9, 2011 at 8:14 am

I think it’s a general problem with police forces. The profession attracts bullies, and police officers tend to protect their buddies, rather than report wrongdoing.

Certainly, there are lots of upstanding police offices. At the same time, I don’t think police culture is well-suited to dealing with problematic officers.

Tristan February 9, 2011 at 9:57 am

Alena,

“1. their identity is readily ascertainable as they have name tags/or badge numbers, their location is generally always known to the authorities and it is a small defined subset”

I have seen hundreds, if not thousands of police officers without any identification (name and badge number removed – they are only stuck on there with velcro).

“2. Police officers already strong incentive to avoid the commission of crime – the consequences are so much greater on them Unlike most citizens, if a police officer is found guilty of a crime, he is much more likely to lose his job.”

If the name and badge number is removed there is very little likely hood that committing a crime with result in losing one’s job. Just look at the case of Adam Nobody – only because the public came forward with evidence linking a particular police officer to the crime is anyone being tried. The co-operation between the ontario police and the rcmp with the ombudsman has been zero. These police forces are operating in this respect as an organized crime unit – with a code of silence to protect violence which was most likely sanctioned, even demanded from on high.

Tristan February 9, 2011 at 9:58 am

“At the same time, I don’t think police culture is well-suited to dealing with problematic officers.”

I agree strongly with this. I also agree that there are some upstanding police officers – but the system is such that it is difficult for officers to stand up for what is right in the face of a superior who has bent on carrying out an illegal order.

Tristan February 9, 2011 at 1:20 pm

“organized crime unit ”

I meant to say, as a criminal organization, or an organized crime syndicat.

Tristan February 9, 2011 at 1:22 pm

We can note that the police also functioned as terrorists during the G20 – terrorizing organizers by picking them up without warrants, driving them around for hours in windowless vans, and abandoning them far from bus service in the suburbs. They also raided houses without warrants to conduct illegal searches – in this capacity they were acting as a paramilitary force, with the goal of creating havoc, disorder and fear amongst the protestors.

. February 9, 2011 at 11:52 pm

By their nature as vigilantes, acting outside or above the law, most superheroes have a troubling undercurrent of aristocratic, undemocratic, authoritarian values. Only the hero, not the police, judges, lawmakers, and average citizen, can effectively protect and improve the city they patrol, and god help anyone who gets in their way.

No one exemplifies these tendencies more than Batman, the ultimate aristocratic hero.

Batman acts with an enormous sense of entitlement. Batman just assumes he’s right in every situation. It’s his city. If he doesn’t like you, he’ll make you leave. If Batman thinks you’re guilty of a crime, he’ll put on his pointed black mask and beat the crap out of you. Laws? Civil rights? Due process? Those are for other people. Yes, the people may have elected a mayor, and may pay taxes to employ the police. Batman could work with them, but they’re all corrupt, weak, and not as good as him. (Except Gordon. Batman has generously determined that Gordon is worthy to be contacted, though he always disappears before Gordon’s done talking, just to remind Gordon who’s the bitch in this relationship.)

Batman isn’t just “the man,” Bruce Wayne is also The Man. He’s a rich, white, handsome man who comes from an old money family and is the main employer in Gotham. He owns half the property in the city. In a very real sense, Gotham belongs to him, and he inherited all of it.

oleh February 9, 2011 at 11:55 pm

Badges are not the only way to identify police officers. Unlike regular citizens, police officers maintain records of and are accountable for where they are working when they are on duty.

It is strange that reference would be made to the G20. At that location there was a small group that committed crimes while hiding their faces. Obviously they were seeking to avoid identification. They also undermined the effectiveness of thousands of protesters that were prepared to show their faces.

I believe that Mahatma Ghandi and Martin Luther King were heroes in part because they were prepared to show their faces and accept the consequences of their actions.

Police are often under that public scrutiny as are politicians. It can be easy to target those who expose themselvses to scrutiny be reason of their jobs.

Tristan February 10, 2011 at 8:39 am

“It is strange that reference would be made to the G20. At that location there was a small group that committed crimes while hiding their faces. Obviously they were seeking to avoid identification. They also undermined the effectiveness of thousands of protesters that were prepared to show their faces.”

I don’t see what the black block has to do with hundreds of police officers removing any trace of identification, and then engaging in violent attacks on protesters. Or do you think that a small amount of property damage justifies random attacks on people’s bodies?

Tristan February 10, 2011 at 8:43 am

“police officers maintain records of and are accountable for where they are working when they are on duty.”

Really. If that were true, then it would not be impossible for the Toronto police service and RCMP to identify its unbadged officers who committed assault during the G20. It’s simply “too difficult for them to bother” – and the code of silence closes the gap.

. February 10, 2011 at 9:46 pm

What the RCMP’s saviour must do to regain Canada’s trust

As the federal government ponders who has the right stuff to become the next commissioner of the RCMP, I hope it considers Maple Leaf Foods CEO Michael McCain.

Not for the job, of course. He doesn’t need more headaches beyond the ones he’s already endured. But the next commissioner does need to demonstrate the kind of public relations instincts and reflexes that Mr. McCain displayed during his company’s food crisis in 2008.

At the time, you may recall, there were nine confirmed and 11 suspected deaths attributed to tainted lunch meat manufactured and packaged in Toronto under the Burns and Maple Leaf brands. Instead of trying to divert blame or suggest people avoid rushing to judgment until a proper investigation was completed – the standard response of CEOs in trouble – Mr. McCain instantly got out in front of the issue.

He accepted blame, against the advice of company lawyers. He offered a sincere apology, which the company put on YouTube. He personally oversaw the recall of tainted meat. He compensated victims in record time. His response set a new standard in crisis management.

It was, in other words, precisely the opposite response we’ve come to expect from the RCMP. Instinctively, the Mounties circle the wagons when there’s a problem, especially one involving an officer. Too often, the response includes disparaging the victim – he had mental-health issues, he was drunk, he had a history of violence – in a bid to rationalize the officer’s action.

oleh February 22, 2011 at 2:03 am

Whether to renew BC’s contract with the RCMP has generated increased discussion among the leading candidates for the leadership of the BC Liberal Party and the next BC Premier. I think this in part is related to the concerns that has been raised of the RCMP. I expect there is a belief that there wold be more accountability with provincial, regional or municipal police forces.

Anon March 26, 2011 at 5:56 pm

One potential upside from looser laws on citizens arrest: perhaps they will be suitable for use against coal company CEOs.

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