The Case of the Not-So-Lucky Moose

This is the interesting case of the Not-So-Lucky Moose, or to use its correct legal name, the case of R. v. Chen et al. 

The case is named after Mr. Jie Chen (also known as David Chen) and the store he owned, the “Lucky Moose Food Mart” in Toronto.  It became a court case because Mr. Chen, and some other staff at his store, were prosecuted for the crimes of assault and forcible confinement due to the actions they took against a Mr. Anthony Bennett, a thief who had been repeatedly stealing goods from the “Lucky Moose.”  Frustrated with Mr. Bennett’s thefts, they decided to seize him, tie him up and confine him in a van.

The case hinged on whether the actions of Mr. Chen and his associates were a legal “citizen’s arrest” under Canadian law or whether they were an unlawful and excessive use of force.  The case generated much public attention and controversy, being criticized by many persons as an example of an honest shop owner being persecuted for merely defending his own store against repeated thefts.

The case was decided by the Ontario Court of Justice in 2010, but the story begins over a year earlier in Toronto’s Chinatown.

On May 23, 2009, Mr. Jie Chen and his colleagues Mr. Qing Li and Mr. Wang Chen were working at the “Lucky Moose.”  Mr. Jie Chen looked at his store’s video surveillance system and observed Mr. Bennett stealing several plants from an outdoor area, placing them on the back of his bicycle and riding away with them.  At the time, Mr. Chen was not able to do anything about this, but that changed roughly one hour later when Mr. Bennett returned to the store again.

As Mr. Bennett returned to the store, Mr. Chen confronted him about the theft and, at some point, Mr. Bennett decided to flee.  Mr. Chen and his associates caught up with Mr. Bennett and managed to physically subdue him.  They then tied him up with some rope and loaded him into the back of a van.

Meanwhile, as the conflict between the staff of the “Lucky Moose” and Mr. Bennett was unfolding, persons in the area had observed the altercation and had begun to call 911.  The Toronto Police received four 911 calls from persons reporting that a group had been observed beating up an individual and then putting that individual into the back of a white van. 

In response, four police officers were dispatched, and upon arrival, they found the van in question slowly driving away from the scene.  Inside were Mr. Jie Chen, his two colleagues and the now captured Mr. Bennett, tied up with rope and laying on the floor in the back.

The police ordered Mr. Chen and his two associates to get on the ground and detained them so they could investigate the incident.  Upon searching the three persons the police found them to be in possession of some boxcutters.  The police then made the decision to arrest Mr. Chen and the two others for assault and forcible confinement.  Mr. Bennett was also arrested at this point.

Following the arrests, the Crown Attorney placed in charge of the case made the decision to proceed with charges against Mr. Chen and his two colleagues.  Mr. Chen was offered a chance at a plea deal but declined, deciding to take his chances at trial.  After consultation with the Crown Attorney, Mr. Bennett agreed to plead guilty to shoplifting and he was sentenced to 30 days in jail for that crime.

The case came to trial in 2010 and, during the trial, the fate of Mr. Chen and his fellows hung on the answers to two key questions: 1) did the three of them have proper grounds under Section 494 of Canada’s Criminal Code to make a “citizen’s arrest” of Mr. Bennett and 2) did the trio use excessive force when making the “citizen’s arrest”?  The Crown Attorney that prosecuted Mr. Chen and the two others argued that they were guilty of crimes for the force they had used against Mr. Bennett because they had no proper authority to make an arrest and, even if they did, they’d used too much force.

Although most arrests are made by police and other public officials in our modern society, the law has recognized for centuries that private persons do have the power to arrest for crimes in certain circumstances and subject to certain limits.  This power of arrest for private persons is commonly known as “citizen’s arrest” and, in Canada, the source of that authority – as well as its limits – can be found in section 494 of the Criminal Code.

In 2009, section 494 stipulated that – to make a valid “citizen’s arrest” – an individual could only arrest someone for a crime if the criminal was caught in the act of the committing that crime or, at the very least, in the act of fleeing arrest and while being pursued by someone who had lawful authority to arrest.  The prosecutor in the case at hand argued that this meant Mr. Chen’s actions could not be a legal arrest because he and his colleagues had captured Mr. Bennett an hour after he had stolen the plants.

However, luckily for Mr. Chen, the trial judge ruled that Mr. Bennett had been committing a crime when he had been captured and so, despite initial impressions, he had been caught in the act.   The judge decided that, when Mr. Bennett returned to the store an hour after first taking the plants, he was still engaged in the crime of theft because he had returned to steal more things.  Indeed, Mr. Bennett even admitted as much.

So, that answered Question #1 in favour of Mr. Chen, but it still left the second issue: Had he used too much force?

Just because a person is authorized to make an arrest doesn’t mean they can use any force they choose.  Both police and private citizens are legally required to keep the amount of force they use within reasonable limits, and they can be held criminally liable for excessive force.

The prosecution argued that the amount used against Mr. Bennett was far too much.  Perhaps the words of Mr. Bennett himself could be used to sum up this point, as – when testifying as a prosecution witness against Mr. Chen – he stated something to the effect of: “Yeah, I stole from them, but they didn't have to frigging tie me up and throw me into a van. There were three of them, I was going nowhere they could have walked me to the store.”

Luckily again for Mr. Chen, although the trial judge found that Mr. Chen and his two other associates had credibility problems, the judge couldn’t be sure beyond a reasonable doubt that excessive force had been used.  Accordingly, all three were therefore found not guilty.

As mentioned, the case of Mr. Chen gained a lot of media attention, with many editorials and opinion pieces commenting that he was being treated unfairly.  Many persons expressed the opinion that it was understandable that he would take the law into his own hands, especially in view of allegations that Mr. Chen made that he would sometimes wait for up to five hours for police to respond to a report of theft at his store.

In response to this public outpouring of sympathy for Mr. Chen, the Canadian federal government of the day enacted changes to the Criminal Code in 2012 which made it easier for persons to make “citizen’s arrests.”  Section 494 of the Criminal Code would now allow a property owner to arrest someone who commits a crime on or against their property, not only if that person was caught in the act, but also for a “reasonable time” afterwards, as long as it is not feasible for a police officer to make the arrest instead.

SOURCES:

Bowal, P., Via, I., Beckie, J. (2014, September 5). Whatever Happened to … David Chen and Citizen Arrests. LawNow. https://www.lawnow.org/whatever-happened-david-chen-citizen-arrests/

Criminal Code, R.S.C. 1985, c C-46. https://laws-lois.justice.gc.ca/eng/acts/c-46/page-86.html#h-126325

National Post Staff. (2013, March 12). ‘Lucky Moose Bill' loosens self-defence, citizen's arrest laws. National Post. https://nationalpost.com/news/toronto/lucky-moose-bill-loosens-self-defence-citizens-arrest-laws

R. v. Chen et al., 2010 ONCJ 641 (CanLII). https://canlii.ca/t/2f7qc

Robson, D. (2010, October 28). Grocer thwarts thief on eve of verdict. Toronto Star. https://www.thestar.com/news/gta/grocer-thwarts-thief-on-eve-of-verdict/article_fa1fd53d-75f3-5a90-aa85-8ab14b3a6090.html

VLOG VERSION