Good morning, Mr. Chairman and members of the committee. Thank you for inviting me here today.
My name is Chi-Kun Shi. I'm a lawyer.
I spend most of my time practising civil litigation, far away from the criminal courts. However, in 2009, when I learned of David Chen's incident and the serious charges he faced, I felt that his case was one that raised issues not only about public safety, but also about fundamental Canadian values. I became involved in the public discourse.
In that process, I had the opportunity to speak to many store owners. I researched the proper roles of all three levels of government in the matter; debated the issues repeatedly on radio and television talk shows in both the English and Chinese languages; and gave numerous interviews to journalists of all media types, including international, national, and syndicated programs, as well as local college student newspapers.
From these discussions I learned that Canadians see the right to exercise citizen's arrest as intertwined with the fundamental relationship between Canadians and our government.
The proposed amendment to subsection 494(2) of the Criminal Code, before the committee today—that is, clause 3 of Bill C-26—is therefore an exercise in recalibrating that relationship and redefining the role of government in the lives of Canadians. It has fundamental implications.
The proposed amendment eliminates the current unworkable restriction that limits citizens' arrests to the very narrow window when the criminals are in the process of committing the crime.
In David Chen's case, the police relied on the contemporaneous restriction to deny David the availability of the citizen's arrest defence, and thereby flipped the essential elements of an arrest, any arrest, into very serious charges of kidnapping and forcible confinement. These charges were levelled against him as he arrested the shoplifter one hour after the crime was committed.
The proposed amendment before this committee will eliminate this scenario. It allows the store owners to make an arrest within reasonable time. However, it imposes other conditions, including the one that I will respectfully submit may not respond to the reality of life in a grocery store.
The proposed amendment stipulates that the citizen making the arrest must have found the criminal committing the offence in the first place, although the arrest could be made within reasonable time thereafter.
In practice, store owners rely on surveillance videos to determine, often after the fact, that the theft has taken place. As many of the shoplifters are repeat criminals, the store owners or their agents may receive the information of the theft through each other as they are often able to reliably identify these criminals.
Strictly speaking, information of that nature may not be sufficient to authorize a legal citizen's arrest under the proposed amendment, as it requires that whoever makes the arrest must have found the criminal committing the offence. As the consequence of an illegal citizen's arrest is so serious, the question one must ask is whether the amendment should be fashioned to provide the store owners more space between, on the one hand, doing a picture-perfect legal citizen's arrest, and on the other hand, suddenly becoming an alleged kidnapper.
Under the Criminal Code, even with this proposed amendment the stakes are very high for store owners who exercise their right to citizen's arrest. The benefits, on the other hand, are quite limited.
As David's case demonstrates, the Criminal Code, as implemented, imposes much harsher penalties on illegal citizens' arrests than on shoplifting. If we believe that the law encourages certain behaviour and discourages other, one can make the argument that the government's vision realized by our Criminal Code on the issue of shoplifting is one of acquiescence.
On the other hand, the government's vision on citizens' rights to protect their own properties is one of severe caution.
During many debates about what David's and other store owners' proper response to shoplifting should be, opponents of the right to citizen's arrest argued that store owners should call the police and then just wait.
As we all know by empirical data, anecdotal evidence, and indeed as admitted by police themselves, there are not enough resources for the police to confront the issue of property crimes on their own. So what these opponents are really saying to the store owners is simply to suck it up. Store owners who try to do anything else to protect their properties are taking the law into their own hands or committing vigilante justice.
In my view, until they've made a citizen's arrest, the law that day was in no one's hands but the shoplifter's. What the opponents have captured, though, in their view is the equating of citizen's activism with anarchy. To some extent the Criminal Code's harsh treatment of store owners reflect this view. Even these proposed amendments, motivated by the recognition of these store owners' fundamental rights to defend the fruits of their hard work, contain conditions that I submit reflect the government's unease about trusting Canadians to participate in the safeguarding of their communities.
The debate surrounding citizen's arrest is an opportunity to re-examine the role that every Canadian should play in his or her own surroundings and community. In Chinese, the word “democracy” is made up of two characters that mean “citizen” and “decide”: “democracy” means “citizens decide”.
These proposed amendments take a step towards giving Canadians more chances to decide and shape their lives. Perhaps some day the government will see fit to further amend the Criminal Code and trust Canadians with the right to defend themselves, where there are reasonable grounds to do so, without placing strictures that, as in David's case, turn Canadians defending their properties into serious criminals and turn career criminals into star witnesses for the crown.
I will always remember a store owner who told me that after he caught a shoplifter and waited for the police to arrive, he was more scared than the shoplifter of what the police might do. That is wrong. This proposed amendment is a good start to setting things right.
Thank you for your attention.