The message from police and Crown prosecutors is very clear:

“Don’t get involved. Leave crime-fighting to the professionals.”

That is precisely the wrong message to send to Canadians, yet that is exactly the message sent in the case of grocer David Chen in Toronto and other cases like his.  Chen was acquitted at trial, luckily, but the process is the punishment and that process  left Chen with a hefty legal bill for daring to do the right thing by apprehending a thief and holding him until police could arrive.

Then there are the cases where the good guy pleads guilty to one charge in order to avoid going to trial on multiple charges.  The victim is then sentenced to far more time in prison that the actual criminals who committed the actual crime.

Take, as an example, the case of Alberta farmer Brian Knight.  Knight lives on his farm outside of Tees, Alberta.  Police response time to his farm would be roughly half an hour on a good day.

On March 26, 2009, three men came onto Knight’s property to steal things.  They, being thieves, are all criminals.  Brian Knight, being the property owner, is the good guy.  I spell this out clearly because the police and courts seem to get very confused about these pesky little details.

Brian Knight awoke to the sounds of three thieves attempting to load his ATV onto the back of their truck in the middle of the night.  When Knight turned on the lights inside his home, two of the thieves panicked and drove away in their truck, leaving the remaining thief to fend for himself.

Harold Groening attempted to make his getaway from the crime scene on Brian Knight’s ATV.  Knight alerted his neighbours of what was happening, then hopped into his vehicle and pursued the thief.  He had his shotgun with him.

When Groening tried to veer across the road he and the ATV were hit by Knight’s car, tossing both the ATV and the thief into the ditch.  Groening attempted to flee and Knight shot at him with his shotgun, which was loaded with light birdshot.  He hit the thief in the leg, but Groening got up and ran off into the dark.

Knight, with the aid of his brother and neighbours, was eventually able to apprehend the thief and hold him until the police could arrive.

That’s precisely what he should have done.  It’s called “Hot Pursuit”.  You’ve caught someone in the commission of a crime and you are pursuing them as far as is necessary to make an arrest.

It’s precisely what the police would have done if it had been them chasing the thief and not Brian Knight.

Knight was not trying to kill Harold Groening.  He was trying to apprehend him and turn him over to police.  He lives on his farm outside the community of Tees, Alberta, a rural town where the police take a long time to arrive.  It’s not like downtown Calgary, for example, where the police response can be just minutes to any reported crime.

Now, since the police and Crown prosecutors don’t like us mere citizens infringing on what they consider “their turf”, Brian Knight was charged with a host of crimes.  The message was clear:

“Don’t get involved. Leave crime-fighting to the professionals.”

To quote Lorne Gunter’s column of October 31, 2010:

The lessons of Tony Martin of England, David Chen of Toronto and Brian Knight of Tees and Joseph Singleton of Taber — both in Alberta — is that the justice system has lost touch with its original purpose — to dispense justice and punishment on behalf of the people.

These four men’s cases show that increasingly the justice system believes protection of persons and property is a task solely for police. Civilians have no right to defend themselves or their loved ones, their homes, farms or businesses, whether or not police can respond quickly enough to calls of break-and-enter or assault.

Knight pleaded guilty to a single charge of criminal negligence causing bodily harm, and as a result the Crown prosecutors dropped all the other charges against him, satisfied they had sent the correct message to the mere citizens of Alberta.

Brian Knight was sentenced to 90 days in prison for the “crime” of stopping a thief from stealing his property.

But what about the actual thief, the real criminal whose actions caused all of this in the first place?

Harold Groening was sentenced to just 30 days in prison, one third of the sentence handed down to the good guy in this case, Brian Knight.

That’s one heck of a message to send to Canadians, isn’t it?

“Don’t get involved. Leave crime-fighting to the professionals.”

Whether police and Crown prosecutors like it or not, Canadians have a long common law history to back them up when it comes to citizen arrest.

There is a happier ending to this case, if one can call it that.  As I noted, Brian Knight was sentenced to three times as long in prison as the thief who attempted to steal his ATV.  That is outrageous, to say the least.

Thankfully Brian Knight appealed his sentence and the Alberta Court of Appeal agreed that his sentence was incorrect.  The court reduced Knight’s sentence to 50 hours of community service and 3 months probation.

Balfour Der, Brian Knight’s attorney, argued that the court should go even further and give Knight a discharge.  This would remove Knight’s criminal record and would be the right thing to do.  Unfortunately, the folks sitting in the big padded chairs know better than we mere citizens, and they refused, saying the reduced sentence

“adequately reflects the gravity of this offence and Knight’s degree of responsibility for it.”

They also went on to chastise Knight’s behavior, saying their refusal to remove Knight’s criminal record

“serves to underline that his conduct in discharging his loaded shotgun was, in all the circumstances, criminal in nature and, contrary to the view of some, unjustified.“

Clearly the Alberta Court of Appeal doesn’t know the history of the common law power of citizens’ arrest, or they don’t care.  Most likely it’s both, and their decision again sends that awful message to Canadians…

“Don’t get involved. Leave crime-fighting to the professionals.”

There was an excellent editorial written by Paul Groarke printed in the Calgary Sun in May, 2010, about the history of citizen arrest.  I’ll quote heavily from that editorial to reacquaint us all with the most basic right each and every one of us has to chase and arrest thieves when they violate the sanctity of our home and property.

“The right of an owner of property to chase a thief is one of the most basic legal rights. This right is called ‘infangthief’ and extended across all of Europe. Knight’s case is a textbook example. Knight alerted his neighbours.  He raised ‘the hue and cry’ and went off, in hot pursuit. This is exactly what the early common law, which gave rise to our criminal law, expected him to do.

This is a very old story. Henry Sumner Maine describes the Roman law in the following words: ‘The Manifest Thief was he who was caught within the house in which he had been pilfering, or who was taken while making off to a place of safety with the stolen goods.’ And let me be plain. The owner was entitled to kill the Manifest, or enslave him.

The same right was a part of the Teutonic law, which came into England with the Anglo-Saxons. It was found among the Norse, who invaded the North of England and gave us juries, and believed in independent courts.

The severity of this law may seem remarkable to us. James Fitzjames Stephen, who is still considered the best authority on the English criminal law, writes that ‘infangthief’ came with the ‘right of summary execution.’ The thief had put himself in a state of private war with the owner and was not entitled to the benefits of the legal process. There was therefore no need to try him. A later law placed some limits on this right.

The old laws nevertheless reflected the views of ordinary people. They were refined over many generations and were more sophisticated than you might think. Knight’s case is technically outfangthief. This gave the owner of property the right to keep up the chase, outside the boundaries of his own property. This is the source of ‘hot pursuit’, which gave people the right to follow the thief, over hill and dale, wherever he went.

It is simplistic to dismiss infangthief as a relic of barbarous times. The purpose of these rights was to guarantee the security of the household. The old law held, literally, that everyone was entitled to his ‘peace’. This was inviolable. A person who disturbed the peace of your home and property — your refugium — had disturbed the foundation of the civil peace. There was also a concern that a thief who escaped might come back. This led to all manner of strife.

There is no doubt that the legal recognition of these rights served the purposes of deterrence in a system without much in the way of legal institutions. The primary impetus behind the ancient law, however, was literally that the law shared the affront that the owner had suffered.

I cannot be alone, legally, in thinking there is something right in this. As Stephen writes, the rights of infangthief can be ‘deduced from the mere exercise of the passions natural to man.’

The analogy with the ‘old west’ is perfectly apt. When a fellow rode off on your horse (or your ATV for that matter), you gave chase. That is what people do in these situations. Obviously, I do not like the idea of people shooting at each other. But, a law that expects an owner to stand idly by and let a thief escape with his property is asking too much. This simply undermines the faith of ordinary people in the law.

Most of the rights of infangthief seem to have been claimed by the police, though the Criminal Code mentions defence of property, and everyone has the right to arrest someone committing an indictable offence. The real recognition of these rights, however, lies in the members of a jury, who may simply refuse to enter a conviction. This is usually done in the teeth of the prosecution.”

It’s a shame our judges, prosecutors and police forces are unwilling and/or unable to comprehend this historic right.