Sunday, June 27, 2010

David Chen: the Law versus Common Sense

Look no further than the criminal charges against Toronto shop keeper David Chen to see how law enforcement can morph into farce.

May 2009: A security camera showed Anthony Bennett, a thief with 43 convictions, stealing $60 in plants from Chen's store, the Lucky Moose in Chinatown. The thief returned an hour later, and was apprehended by Chen and his employees. They held him until the police arrived four minutes later.

In addition to charging Bennett with shop-lifting, the zealous constable charged Chen and his employees with assault, kidnapping, forcible confinement, and possession of a concealed weapon. The weapon was a box cutter used in Chen's retail business, and attached to his belt. (Shades of the killing of Robert Dziekanski where the RCMP claimed a stapler an offensive weapon.)

Crown Prosecutor Colleen Hepburn offered to drop the kidnapping and assault charges if Chen pleaded guilty to forcible confinement and possession of a weapon. For this he would receive an 18-month suspended sentence and a criminal record. Chen refused. The kidnapping and possession charges were dropped anyway.

A charge of kidnapping entitles defendants to a jury. The Prosecutor rightly feared Chen's peers would do the sensible thing and find everyone not guilty. The two remaining charges will be heard by a judge sitting alone.

For pleading guilty to this and yet another theft charge, serial criminal Bennett got 90 days jail time reduced to 30 days on condition he testify against Chen -- a despicable use of prosecutor discretion.

The criminal code allows a citizen to arrest someone if caught committing the crime, a law that goes back to ancient times of hue and cry. Since then, surveillance cameras have been invented. They operate in lieu of the shopkeeper standing guard all day. Any reasonable judge would modernize the concept of citizen arrest to include the Chen situation, and accept camera evidence as sufficient grounds for later arrest.

Should the judge find guilt, the vagaries of the law will reveal themselves. We can be sure fee-sniffing, ambulance-chasing lawyers are already salivating to offer Bennett a deal -- split the take in a civil suit against David Chen. Given the quirks of the legal system, a judge might well award damages to the thief. But that's for another post.

October 29, 2010: Chen and his employees were found not guilty. On occasion, judges do the right thing. The law under which they were arrested was amended in June 2012.

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