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Thief-nabbing grocer to pursue legal challenge if kidnap charge stands
The Canadian Press
Published Thursday, October 22, 2009 7:09PM EDT
TORONTO - A Toronto shopkeeper facing criminal charges after tying up and detaining a thief is threatening a legal challenge against Canada's citizen's arrest laws if the charges aren't dropped.
Wang (David) Chen, who owns the Lucky Moose Food Mart, was charged with kidnapping, forcible confinement, assault and carrying a concealed weapon after taking down a shoplifter whose picture is plastered on storefronts throughout the Chinatown community.
On May 28, Chen -- who says he's waited on police for hours after reporting thefts -- took it upon himself to capture the criminal.
His lawyer, Peter Lindsay, called Chen a "good, hardworking shopkeeper who tried to apprehend a criminal."
"(Chen) gets victimized and merely stops a shoplifter and restrains that shoplifter for somewhere between three or four minutes," Lindsay said outside court Thursday.
"When police arrive, (he) throws open the van and says 'Here he is.' And Mr. Chen is being dragged through our criminal courts."
The case has put a spotlight on the debate over victim's rights and made Chen, a 35-year-old father of two young children, something of a hero in his Chinatown neighbourhood.
Surveillance video from Chen's store, which has been uploaded on YouTube, shows a man stealing about $50 worth of plants. Anthony Bennett later admitted to taking the plants and selling them on the street for $2 each.
After the thief fled the store, he allegedly stole flowers from another store a few blocks away, then returned to the Lucky Moose an hour later. When Chen tried to question him, the man fled.
Chen chased him down, tied him up and put him in a van to await police, allegedly with the help of two employees.
Under the Criminal Code, a person must find someone in the act of committing a crime for a citizen's arrest to be legal.
If the kidnapping charge is not withdrawn the case will be argued in front of a jury and a Constitutional challenge will be launched, Lindsay said.
"Arguably, under our current citizen's arrest, you can't arrest (the shoplifter) because he's not actually committing a crime, even though you have excellent evidence that an hour earlier he committed a crime, including store surveillance video that shows the whole thing," he said.
The case will resume Nov. 3, when the Crown is expected to announce whether kidnapping charges will be pursued.
Lindsay said that at a pre-trial meeting Thursday, the Crown refused to withdraw any of the charges, some of which he called "patently ridiculous."
"The carrying a concealed weapon (charge) is for having a box cutter, which a shop owner has to open boxes," he said.
"There's no suggestion the box cutter was used in any way, shape or form (in the incident)."
Bennett pleaded guilty to two counts of theft in August. The Crown wanted a 90-day sentence but offered him 30 days because he agreed to testify against Chen. With time served, he was out after 10 days.
Lindsay called the deal a miscarriage of justice.
"The bad guy says 'I'll help you to get the good guy,' and our court system gives him a pat on the head and says 'We'll give you a break,' notwithstanding your three-page criminal record."
Court transcripts from Bennett's trial corroborate the events that led up to the alleged attack -- that Bennett rode up to the store on a bicycle, selected 10 plants and put them in a box on his bike and rode off "without any attempt to pay for the plants."
Bennett, 51, a father of six, has a longtime addiction to crack and a criminal history including a number of drug and property offences, court records show.
Chen, speaking mostly through a translator, thanked his numerous supporters, adding that he is anxious about his fate and is under a lot of pressure. He called the charges unfair, saying he didn't wait for police to arrive because it took them six hours to show up the last time he called.
Const. Wendy Drummond, a spokeswoman for Toronto police, said theft calls are a lower priority, and get bumped further down if the suspect has fled. If the suspect remained at the scene, she said, it would increase the priority, even if the suspect is being detained by a shopkeeper.
Chen's community started the Victims' Rights Action Committee after the charges were laid. More than $6,000 has been raised for Chen's legal defence.
Committee members said outside court they are asking the attorney general to drop the charges.
"All we want is for the Criminal Code to work for the store owners and not for the criminals," said Chi-Kun Shi.
Federal Immigration Minister Jason Kenney met with Chen at his store last month and said merchants should be able to use "reasonable means" to defend their property.