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David Chen found not guilty in citizen's arrest case
The Canadian Press
Published Friday, October 29, 2010 5:08PM EDT
TORONTO - A Toronto grocer who enjoyed widespread support after tying up a shoplifter and throwing him in a van was acquitted of all charges Friday after a judge ruled it was a citizen's arrest.
While catching a thief red-handed is a requirement of the law when making a such an arrest, David Chen captured the shoplifter one hour after he stole plants from Chen's Chinatown store.
However, Justice Ramez Khawly called the one-hour issue a "red herring" in dismissing assault and forcible confinement charges against Chen and two of his co-workers.
Anthony Bennett, who served 30 days in jail for the theft, has admitted in court he returned to the Lucky Moose Food Mart an hour later to steal again.
"Mr. Bennett was committing an indictable offence whether Mr. Chen found him red-handed (or not)," Khawly said in his verdict, which took almost an hour to deliver to a standing room only court.
"This was a continuing theft, pure and simple."
Any reasonable person would think that Bennett was in the process of stealing again, the judge added.
"It's a no-brainer to infer that... he's back to continue his illegal activities."
A crowd of about 100 people, many of them shop owners, cheered and congratulated Chen once the judge left the courtroom.
Outside, a smiling Chen, surrounded by his lawyer, reporters and spectators, said he was "feeling very, very happy."
When asked how he'll approach shoplifters given the judge's decision, Chen said, "I would be careful."
He added other shopkeepers should also be cautious and call police early.
For Chen it's not a hypothetical question -- three separate shoplifters stole from his store Thursday, his lawyer said.
The case against Chen drew the ire of many who said the grocer, who testified he worked 18-hour days, was the real victim.
In his ruling, the judge acknowledged that the story has become a "cause celebre," gaining widespread media attention across the country.
Chen thanked his backers and said several people have come to his store to meet him.
"I know Mr. Chen is very grateful for all the support he's received from community," his lawyer, Peter Lindsay, said outside court.
"He's expressed to me his gratitude many times and we're very grateful this is finally over for Mr. Chen."
The Crown said the decision would not set a precedent, and that it would continue to prosecute such charges against shopkeepers on a case-by-case basis.
Bennett's two visits to the store were the "same transaction" separated only in time because Mr. Bennett's bicycle did not have enough room to fit more plants during his first visit, the judge said.
When someone is indoors and sees a theft on a surveillance camera, as was the case with Chen, a delay ensues "by necessity" because it takes time to go outside to catch a thief, the judge said.
There should be "greater elasticity" surrounding the time frame of when the crime was committed, said Khawly.
However, the judge also said Chen and the other men used "disproportionate and unreasonable" force when they bound Bennett's ankles and wrists and put him in the back of the van.
Still, Khawly told the court he acquitted the men because he found much of the testimony -- from both sides -- hard to believe and it gave him reasonable doubt.
Chen's store is in the riding of MP Olivia Chow, who has introduced a private member's bill dubbed the "Lucky Moose Bill" to change the law to allow more time to make a citizen's arrest.
Chow, who was in court Friday, she will be seeking unanimous consent in Parliament next week, and hopes the government will take her bill and make it law.
Eglinton-Lawrence MP Joe Volpe has a similar private member's bill which uses different language.
Volpe says he introduced the bill to generate debate and "prod the government into acting."