Friday, 27 April 2012


In England, homeowners and shopkeepers are soon to be given the right to protect themselves against burglars and robbers. They will soon be allowed to use reasonable force if they perceive a threat to their property. Previously they could act only when they feared for their lives. The surprise proposal by the government is a response to public outrage over cases such as that of Munir Hussain, who chased and beat a man who had held his family at knifepoint and Tony Martin, the Norfolk farmer who shot a burglar in his back resulting in the burglar dying of his wound.

I should point out that persons holding a knife (and even scissors) and approaching police officers with a knife or scissors in their hands have been shot dead by the police officers in Canada and the police officers who used deadly force were determined to have done no wrong. Mind you, they didn’t shoot the men when they were running from the police. 

The most recent high profile case in England was that of millionaire businessman Munir Hussain, 54, who in December 2009 was sentenced to two and a half years in jail for attacking a knife-wielding burglar who threatened to kill his wife and family at their Buckinghamshire home.

His case provoked nationwide fury when he and his brother were imprisoned for injuring career criminal Walid Salem, while the convicted burglar was allowed to walk free. However, a month after being sentenced to prison, Britain's top judge released Mr. Hussein from the Bullingdon Prison after changing his term to a suspended sentence. The Lord Judge said his decision came because of the exceptional nature of the case and the public outrage it has provoked.

However, the most famous case to date in England is that of Tony Martin, a Norfolk farmer, who in 1999 shot two burglars in the back—killing one after allegedly having his property raided on ten previous occasions.

He was first convicted of murder and later the conviction was reduced to manslaughter following an appeal. Despite that, he became a cause célèbre for the homeowner rights movement and helped galvanize support for a change to the law. He was released from jail for good behaviour in 2003.

As the law in England stands today, the convictions of the two men who attacked and injured or killed the criminals were justified. Let me explain.

Hussein was chasing the criminal therefore he and his family were no longer in fear of their lives. He was quite correct in chasing the man in order to arrest him. Citizens can make citizen arrests. However, once he caught him, he then commenced to beat him. No doubt the court concluded that he while beating the man, he was using unreasonable force. While beating the man, he was actually punishing him and that is not what he can do. It is the sole responsibility of the judge in a court room to punish an offender and not that of a private citizen. 

With respect to Tony Martin, he shot the two criminals in the back while they were fleeing the scene of the burglary. He was not in fear of his life therefore the shooting of the burglars in their backs causing one of them to die of his wound constituted the use of unreasonable force. 

As I said earlier in this piece, both men were guilty of having committed the crimes of what is best described as aggravated assault.

In the United States, an attempt by a man to protect his property ended in a sentence of life in prison. The verdict was announced in recent media reports following the incident that took place in May 2009. Two armed robbers broke into a drugstore in Oklahoma City and the pharmacist pulled out a gun and shot one of them resulting in his death. The other robber escaped.  The case caused turmoil in American society. Some people hailed the pharmacist as a hero—others felt that he should be charged with murder. He was and when convicted, he was sentenced to prison for life.

Unfortunately, I don’t know the full particulars of that case. If he was in fear for his life or for the lives of his customers and he and his customers were in immediate danger of being seriously harmed in any manner or killed by one or both of the two armed robbers, then the pharmacists was quite correct in shooting at them. If on the other hand, he fired on them while they were escaping, then he was definitely in the wrong. 
Our homes are our castles. We can do whatever it takes to protect ourselves, our loved ones, and our property from an intruder. But at the same time, we must only use what is referred to in law as reasonable force. But what constitutes reasonable force?

In Canada, it can be seen from the wording of s. 34(2) of the Code that there are three constituent elements of selfdefence, when as here the victim has died:  (1) the existence of an unlawful assault; (2) a reasonable apprehension of a risk of death or grievous bodily harm; and (3) a reasonable belief that it is not possible to preserve oneself from harm except by killing the adversary.

As you can see from that particular aspect of Canadian criminal law—Tony Martin who shot one of the burglars in his back and killed him would not have the benefit of section 34(2) of the Canadian Criminal Code as his defence for the crime of second degree murder because at the moment when he fired his gun, there was no evidence of him being assaulted by the burglars, there was no reasonable apprehension that he would be killed or suffer grievous harm and that he had no other choice but to shoot the burglar to save his own life. The subsection can only afford protection to the accused if he apprehended death or grievous bodily harm from an assault he was repelling and if he believed he could not preserve himself from death or grievous bodily harm otherwise than by the force he used. 

Nonetheless, his apprehension must be a reasonable one and his belief must be based upon reasonable and probable grounds. It would hardly be reasonable to presume that shooting a burglar in his back while he is fleeing the scene of a burglary is reasonable at all.

In a case involving selfdefence, it is the accused's state of mind that must be examined, and it is the accused (and not the victim) who must be given the benefit of a reasonable doubt.  The question that the jury must ask itself is therefore not ‘was the accused unlawfully assaulted?’ but rather ‘did the accused reasonably believe, in the circumstances, that he was being unlawfully assaulted?’

In R. v. Cinous, a 2002 Supreme Court of Canada case, the court said in part;

“The air of reality test must be applied to each of the three elements of selfdefence under sextion 34(2) of the Criminal Code, which have both a subjective and an objective component.  With regard to the first element it would be possible for the jury reasonably to conclude that the accused believed that he was going to be attacked, and that this belief was reasonable in the circumstances.  There is an air of reality to the subjective component of the defence as there is direct evidence on the accused’s beliefs, in the form of the accused’s testimony.

“A jury acting reasonably could draw an inference from the circumstances described by the accused, including particularly the many threatening indicators to which he testified, to the reasonableness of his perception that he was going to be attacked. 
“With respect to the second element of selfdefence, reasonable apprehension of death or grievous bodily harm, for the same reason there is also an air of reality to the accused’s perception that the attack would be deadly.  The accused’s testimony is unambiguously to the effect that he feared a deadly attack. A jury acting reasonably could draw an inference from the circumstances described by the accused, including particularly the indications that Y and M were armed, the rumours of a plan to assassinate him, the suspicious behaviour, and the wearing of the gloves, to the reasonableness of his perception that he was in mortal danger. 

“With respect to the third element of selfdefence, namely a reasonable belief in the absence of alternatives to killing, it must be established both that the accused believed that he could not preserve himself except by shooting the victim, and that he held this belief on reasonable grounds.  There is an air of reality to the accused’s claim that, at the time he shot the victim, he actually believed that he had no alternative.  The accused’s extensive direct testimony regarding his subjective perceptions at the relevant time amounts to more than a “mere assertion” of the element of the defence

“However, the belief that the accused had no other option but to kill must have been objectively reasonable. Section 34(2 requires that the accused have believed on reasonable grounds that there was no alternative course of action open to him at that time, so that he reasonably thought he was obliged to kill in order to preserve himself from death or grievous bodily harm.  In this case, there is absolutely no evidence from which a jury could reasonably infer the reasonableness of a belief in the absence of alternatives.” unquote 

This is the kind of belief that 28-year-old George Zimmerman must prove in court that was in his mind when he shot Trayvon Martin, the 17-year-old boy on February 26, 2012 in Sanford, Florida. The background of that case is as follows:

Martin was staying at the home of his father's fiancée when he left to walk to a  7-eleven  convenience store where he bought a bag of  Skittles candy and a can of  Arizona Iced Tea. While walking back, Martin was seen in the gated community as appearing as a suspicious person by Zimmerman, (who was a volunteer watch commander in the gated community) and who was in his vehicle that night on a personal errand. At the end of an interaction between the two, Martin was shot 70 yards from the townhouse where he was staying.

Unfortunately, at the time of this writing, we don’t really know exactly what happened seconds before the shooting. What we all do know however is that Zimmerman called the Sanford Police Department at the non-emergency number at approximately 7:00 p.m., to report what he considered to be suspicious behavior by Martin, whom he described as “just walking around looking about” in the rain. The police dispatcher    tape recorded Zimmerman saying, “This guy looks like he is up to no good or he is on drugs or something.” He further stated that the person he was observing had his hand in his waistband, was holding something in his other hand, and was walking around slowly in the rain looking at houses. On the recording of the call, Zimmerman is heard commenting, “These assholes, they always get away.” From that statement, one can surmise that Zimmerman was referring to burglars.

From what Zimmerman was saying to the police, we can presume that he really believed that Martin was a burglar. Now we know that he wasn’t a burglar but admittedly, burglars do look at houses as they pass them—but then so do many other people who are walking down a street and who are not burglars. Because someone looks at houses when he walks down a street is not a sufficient reason to suspect that such a person is a burglar.

It is beyond my understanding as to how Zimmerman could possibly conclude that anyone is on drugs simply by observing him at night while the person he was watching is walking down the street. If he was staggering, he could be drunk from the effects of alcohol. He could also be partially crippled. His statement that Martin was on drugs was gratuitous to say the least.  

The dispatcher recommended that he not take any action, and informed him that the police were on the way. Zimmerman reported that Martin had started running. The dispatcher asked him if he was following Martin and he affirmed that he was. The dispatcher informed him that this was not necessary, saying, “We don't need you to do that.” Zimmerman said “OK” and added that he would meet the police by the mailboxes. But before hanging up he said. “Actually, could you have him call me, and I'll tell him where I'm at?”

From that conversation, I have presumed that Martin was running towards his home which was a mere 70 yards from the townhouse he was staying at. This also means that Zimmerman was behind him and not ahead of Martin.

Why was Martin running from Zimmerman? We know he wasn’t a burglar and I doubt that he knew that Zimmerman was a volunteer who kept an eye on the neighbourhood and as such, he would watch for burglars. Martin must have been frightened when he realized that someone was closing in on him. Perhaps he thought he was going to be robbed.

At 2:07 minutes into the police call, Zimmerman said, “He's running.” Thirty seconds later, Zimmerman told the dispatcher, “He ran.” Later he couldn’t tell the dispatcher the address of his current location so the dispatcher asked Zimmerman for his apartment number. Zimmerman told him the numbers of his street address and then he added, “Oh crap, I don't want to give it all out. I don't know where this kid is.” Zimmerman hung up almost two minutes after the comment that Martin was running. The recording ends.

At the time of the incident, Martin was talking on his cell phone to his girlfriend, according to her and confirmed by phone company records. She called at 7:12 p.m. and remained on the phone with Martin until seconds before he was shot.

According to her attorney's statement, Martin's girlfriend said that Martin expressed concern about a strange man following him, and she advised him to run. She says she heard Martin say; “What are you following me for?” followed by a man's voice responding; “What are you doing here?” She said that she heard the sound of pushing and that Martin's headset suddenly went silent, leading her to believe that Martin had been pushed. She attempted to call him back immediately, but was unable to reach him.
Although Zimmerman was a volunteer who said that he would keep an eye on the neighbourhood for suspicious people, he didn’t have any authority to arrest Martin or anyone else for that matter unless he saw that person committing a crime. Martin was not committing a crime and although he might have appeared to Zimmerman as being a person who might be up to know good, he couldn’t legally ask him what he was doing in the neighbourhood. Further, the police dispatcher told him not to keep following Martin and that the police would be sent to the scene.

Timothy Smith, the first officer to arrive at the scene, reported finding Zimmerman standing near Martin, who was lying face down in the grass and unresponsive. At that time, Zimmerman stated to Smith that he had shot Martin and was still armed. Zimmerman was handcuffed and his weapon removed from him. Smith observed that Zimmerman's back was wet and covered with grass and he was bleeding from the nose and the back of his head. Obviously, a scuffle between him and Martin had occurred prior to the police arriving.

It is my opinion that Zimmerman had no right whatsoever to stop Martin and question him. In effect, he made what is commonly referred to as a false detention. If Martin had been committing a crime, then Zimmerman would have the right to make a citizen’s arrest but we all know that Martin was simply walking back to the townhouse where his stepfather lived.

An eyewitness to the confrontation just prior to the shooting stated that Martin was on top of Zimmerman and punching him, while Zimmerman was yelling for help. This witness, who identified himself as John, stated to Fox News Orlando that “the guy on the bottom, who had a red sweater on, was yelling to me, 'Help! Help!' and I told him (Martin) to stop, and I was calling 911. He went on to say that when he got upstairs and looked down, Martin was lying in the grass, and the witness believed Martin to be dead.

That night, and in later meetings, Zimmerman described to the police in detail, and re-enacted for police, what he says took place:

He said that he was on his way to the store to do some errands when he spotted Trayvon Martin walking through his neighborhood. He followed Martin, but lost track of him. He was returning to his SUV when Martin approached him from the left rear and confronted him. Martin asked him, "Do you have a problem?" He replied, “No,” and Martin then said, “Well, you do now" or something similar, while Zimmerman reached for his cell phone. Martin then punched him in the face, knocking him down, and began beating his head against the ground. Zimmerman called out for help, while being beaten, before shooting Martin once in the chest at close range, in self-defense.
Quite frankly, I find it hard to believe part of Zimmerman’s story. Martin was definitely afraid of whoever was following him. Since he was only 70 yards from his home, why would he then turn around and approach Zimmerman and ask him why he following him?

Until we know what really happened when Zimmerman reached Martin, everything that has been said so far is speculation only although witnesses have said that Martin was on top of Zimmerman and pounding him in his face. But even if he was, it could be because he was trying to stop Zimmerman from continuing with the fight. In any case, that is when Zimmerman shot Martin. It is conceivable that at the precise moment, Zimmerman was in fear for his life since he had no way of knowing just how long Martin was going to keep striking him.

Unfortunately, we don’t have Martin’s version of the event. If in fact the story Zimmerman gave to the police is true, then he was justified in shooting Martin in order to save his own life. However, he was not justified in continuing to follow Martin, especially when the police told him not to follow the boy. Further, Martin had not committed a crime prior to being accosted by Zimmerman and he may have been fighting Zimmerman in self defence.

On April 11th, Florida State Attorney Angela Corey, the special prosecutor, announced that George Zimmerman had been charged with  second-degree murder. In Florida, that charge carries a maximum sentence of life imprisonment and a minimum sentence of 25 years. That charge involves the commission of an act that is imminently dangerous to another person, and evincing a depraved mind regardless of human life. The requirement of ‘depraved mind’ is what, to a large extent, separates the charge from manslaughter.

If the doctrine of citizen’s arrest extends so far as to encompass the scenario I have just written about, it risks opening the doors to a vigilantism that offends public policy, public safety and common sense. Self-help remedies are not to be encouraged in the enforcement of the criminal law. This last point was very recently re-affirmed by no less eminent an authority than the Lord Chief Justice of England and Wales who, in R. v. Burns, a 2010 case  in which the court observed that, “the common law itself has always been reluctant to extend the ambit of self-help to situations which may culminate in violence.”  

Stand Your Ground laws were sold in  American legislatures primarily as a victims’ rights measure, to limit what many saw as prosecutors second-guessing situations where someone had a split second to make a life-or-death decision to defend themselves with force. The state of Florida has such legislation on its books. It reads as follows:

776.013 Home protection; use of deadly force; presumption of fear of death or great bodily harm.

(1) A person is presumed to have held a reasonable fear of imminent peril of death or great bodily harm to himself or herself or another when using defensive force that is intended or likely to cause death or great bodily harm to another if:

(a) The person against whom the defensive force was used was in the process of unlawfully and forcefully entering, or had unlawfully and forcibly entered, a dwelling, residence, or occupied vehicle, or if that person had removed or was attempting to remove another against that person’s will from the dwelling, residence, or occupied vehicle; and

(b) The person who uses defensive force knew or had reason to believe that an unlawful and forcible entry or unlawful and forcible act was occurring or had occurred.
(2) The presumption set forth in subsection (1) does not apply if:

(a) The person against whom the defensive force is used has the right to be in or is a lawful resident of the dwelling, residence, or vehicle, such as an owner, lessee, or titleholder, and there is not an injunction for protection from domestic violence or a written pretrial supervision order of no contact against that person; or

(b) The person or persons sought to be removed is a child or grandchild, or is otherwise in the lawful custody or under the lawful guardianship of, the person against whom the defensive force is used; or

(c) The person who uses defensive force is engaged in an unlawful activity or is using the dwelling, residence, or occupied vehicle to further an unlawful activity; or

(d) The person against whom the defensive force is used is a law enforcement officer, as defined in section 943.10 (14), who enters or attempts to enter a dwelling, residence, or vehicle in the performance of his or her official duties and the officer identified himself or herself in accordance with any applicable law or the person using force knew or reasonably should have known that the person entering or attempting to enter was a law enforcement officer.

(3) A person who is not engaged in an unlawful activity and who is attacked in any other place where he or she has a right to be has no duty to retreat and has the right to stand his or her ground and meet force with force, including deadly force if he or she reasonably believes it is necessary to do so to prevent death or great bodily harm to himself or herself or another or to prevent the commission of a forcible felony.

(4) A person who unlawfully and by force enters or attempts to enter a person’s dwelling, residence, or occupied vehicle is presumed to be doing so with the intent to commit an unlawful act involving force or violence.

If Zimmerman hopes to use the Stand Your Ground defence, he can only reply on Section 3 however, even that is tentative considering the fact that it was Zimmerman who confronted Martin against the direct order of the police. If Zimmerman laid a hand on Martin and Martin believed that his life was in peril, then it would have been him who could use section 3 as a defence for his actions.

I will wait until the trial is over before giving my readers my final opinion about this particular case.

It is at this time I wish to tell you of another case which is equally interesting.

A Toronto restaurant owner is facing assault charges after fighting with a man he said had repeatedly tried to steal from his restaurant in a case that raises issues about the rights of property owners.

Naveen Polapady owns Maroli, an Indian restaurant located at 630 Bloor St. W. near Euclid Avenue in Toronto. Polapady, who lives above the restaurant with his wife and two children, told CBC News that he caught a man trying to break into his home and business on numerous occasions in a string of events that began last summer.

Polapady said he would often spot the man lurking in an alley located at the back of the restaurant.  Polapady said he reported the attempted thefts to police, but they made no arrests. In response, Polapady upgraded his locks and installed surveillance cameras.
On August 17th 2011, Polapady's van was broken into and a GPS unit stolen. The thief was seen doing this on Polapady’s security cameras. Four days later, Polapady claims that he spotted the same man in the alley behind his restaurant and confronted him.
Police stated that Polapady was hiding in the bushes with the intention of ambushing the alleged thief on that day. Polapady denies it was an ambush and says he saw the man trying to break into one of the vehicles on his property and was trying to stop him.
During the tussle, he tossed masala spice powder he was holding into the man’s face, then he grabbed a broomstick from his backyard to “defend himself” in a fierce scuffle that was partly captured on surveillance tape. Polapady struck the man with the broom handle. During a portion of the struggle that happened off-camera in which the two men were trading blows, Polapady eventually escaped from the larger man, who was then seen riding away on his bike in the opposite direction.

A question that must be answered by Polapady is; why did he have the masala spice powder with him when he confronted the alleged thief if he wasn’t waiting for him to come onto the scene? If he was inside his restaurant, he wouldn’t have seen the man and if he was outside the restaurant waiting for the man, then he probably had the masala spice powder with him. Now it is easy to see why he claimed that he wasn’t waiting in ambush. If he was, then he had the masala spice powder in his hand and since any powder that can cause itching or smarting of the eyes is called a noxious substance and as such, it would be illegal to use it as a weapon if he carried it outside his restaurant while waiting in ambush.

The use of force extraordinarily authorized by section 494(1)(a) of the Canadian Criminal Code applies only where the arrest and delivery of a suspect to the police is the sole purpose of the arrestor’s intervention.  No ulterior purpose can be condoned.  

The arrestor is, in effect, acting as an agent of the state and the authority survives only so long as his or her conduct falls strictly within the compass of the statutory empowerment. Was fighting with the suspected thief to wreak vengeance on him Polapady’s sole purpose or was it for the purpose of arresting the alleged thief or was it for both purposes?

Polapady told CBC News, “He was physically very strong. I had to run for my life. He chased me and threatened to kill me.” Polapady then followed the man in his car and called police.

The man was arrested and after hospital treatment was questioned by police and released without charge due to lack of evidence, said Toronto police Const. Wendy Drummond. It was later announced by the police that the man Polapady fought with was not the same man that he originally saw attempting to break into his home and restaurant. In fact, they later arrested the man who broke into polapady’s home and restaurant. He pleaded guilty of theft and possession of property obtained by crime in the Polapady case.

Polapady was charged with assault causing bodily harm, assault with a weapon (the handle of the broom) which resulted in the man requiring six stitches to his head wound. He was also charged with administering a noxious substance, a reference to the masala powdered spice. Of course, it makes me wonder why the innocent man was lurking in the area of the parking lot.

The police may very well have arrested the man had Polapady waited for the man to actually break into the car. Just standing about and even just looking into a car is not necessarily a criminal act. Sometimes people look into parked cars to see what the cars look like inside, especially if they are in the market for new cars. 

Police have confirmed to CBC News that the man they detained and questioned after the incident has multiple theft convictions. That by itself isn’t actual proof that he was going to break into one of the vehicles behind Polapady’s restaurant although him being there does raise suspicions that would make a reasonable man think his purpose was to break into the car. But being suspicious isn’t proof of intent. Polapady acted on his suspicions alone that that is what got him into trouble.

Constable Wendy Drummond said police investigated the man that Polapady had fought with but didn't find enough evidence to support charges against the man. She said, “We responded early in the morning to reports of a break and enter. We made an arrest a very short time thereafter. We went over quite a bit of information and evidence but we found there wasn't enough evidence to lay those charges of breaking and entering.”

Drummond said anyone who finds themselves in Polapady's situation should contact police before taking matters into their own hands. While the law allows people to defend themselves and their property against crimes, she said they must do so within certain limits. “There is a reasonable use of force that can be used,” said Drummond. “And what is deemed to be reasonable is something that the courts will determine.”

But determining exactly just how much force the law allows a citizen to use in defending themselves or their property is often a grey area. Last year, Prime Minister Stephen Harper announced new legislation aimed at expanding legal protection for people making a citizen's arrest or defending themselves or their property against a criminal act. The legislation came in response to a well-publicized 2009 incident in which a store owner in Toronto's Chinatown chased down and tied up a man who had previously stolen plants from his store. The shopkeeper, David Chen, was originally charged with assault and forcible confinement before a judge threw out the charges.

With an election threat looming, the Canadian Federal government introduced a Bill which would give shop owners and others more flexibility to make citizen's arrests. The current law regarding self-defence and the power of citizen's arrest are complex and convoluted. Further, the laws governing self-prtotection are unclear, which is why the government's proposed Citizen and Self-defence Act will give property owners more flexibility in making ctizen's arrests. Now in its third reading, the Bill aims to expand the citizen's power of arrest and clarify the rules abound defence of home and property. It has been dubbed the Lucky Moose Bill, after the Toronto Chinatown store owned by David Chen.    

The purpose of the Act is to take the existing Criminal Code sections dealing with the same thing and compress them into much shorter and clearer sections.
On May 23, 2009, David Chen, owner of the Lucky Moose Food Mart in Toronto apprehended a man, Anthony Bennett, who had stolen from his store. After Bennett was initially caught on security footage stealing from the store, he returned an hour later but not at that moment stealing anything. At that time, Chen and two of his employees chased the man and after catching him, they tied up the man and locked him in the back of their delivery van.

When the police arrived, they charged Chen with kidnapping, carrying a dangerous weapon (a box cutter, which most grocery store workers would normally have on their person) assault and forcible confinement. Crown prosecutors later dropped the kidnapping and weapons charges but proceeded with the charges of forcible confinement and assault. Those charges were later dropped against Mr. Chen.

The changes made by the Citizen's Arrest and Self-defence Act will allow citizen's arrests without a warrant within a reasonable period of time. Right now, under section 494(2) of the Criminal Code, a citizen's arrest must be made while the crime is actually being committed. Chen’s arrest of Bennett was for something the thief had done an hour earlier and not at the time of the arrest.

If that law was in force at the time Chen apprehended the thief and at the time Polapady apprehended the real thief who had stolen his items an hour earlier, then their citizen’s arrest would be legal providing of course that the force they used to apprehend the thieves were reasonable.

The problem facing Polapady is; did he have the right to apprehend the suspicious-looking man who appeared to be lurking in the immediate area of the parked cars  with the force he used?

A private individual’s power to arrest without warrant is set out in the Canadian  Criminal Code, The core provision, section 494, describes the general power afforded anyone (including private persons as well as the police) to arrest without warrant.  Its reads:

494. (1) Any one may arrest without warrant (a) a person whom he finds committing an indictable offence; or (b) a person who, on reasonable grounds, he believes (i) has committed a criminal offence, and (ii) is escaping from and freshly pursued by persons who have lawful authority to arrest  that person. (2) Any one who is (a) the owner or a person in lawful possession of  property, or (b) a person authorized by the owner or by a person in lawful possession of property, may arrest without warrant a person whom he finds committing a criminal offence on or in relation to that property. (3) Any one other than a peace officer who arrests a person without warrant shall forthwith deliver the person to a peace officer.

Persons other than police officers who lawfully exercise a section 494 arrest power are protected from criminal liability by section 25(1) of the Code:

25. (1) Every one who is required or authorized by law to do anything in the administration or enforcement of the law (a) as a private person, is, if  he acts on reasonable grounds, justified in doing what he is required or authorized to do and in using as much force as is necessary for that purpose.
In order for Polapady to benefit from the protection of sections 494(1) and 25(1) of the Canadian Criminal Code, he must prove that the alleged thief was in the actually process of committing an offence relating to his private property or the private property of any of his customers.

If in fact the alleged thief was attempting to break into one of the vehicles on Polapady’s property, then Polapady had the right to make a citizen’s arrest. If however, there was no evidence of the man attempting to break into a vehicle on Polapady’s property and instead he chased after him and tried to arrest him because he believed that the man he saw was the same man whom he believed had stolen his GPS during a previous day, then he did not have the right to arrest him. The current law was still in effect when he apprehended the man.

The necessary concurrence of both time and place – respecting the offender, the offence and the arrestor – is repeatedly leading ultimately to one’s conclusion, that in order to invoke the justification afforded by section 494(1)(a) “the person effecting the arrest must have come upon someone who, at that very moment and at that very place, is engaged in criminal activity or alternatively, is escaping his pursuers after having just committed an offence relating to private property.”

Since the man had not at that precise moment committed any offence when Polapady began chasing him, the charge of assault causing bodily harm, assault with a weapon and administering a noxious substance, a reference to the spices, was justified.
Further, when he had in his possession the masala spice powder while waiting outside his restaurant, his act was illegal. A citizen is not permitted to have in his possession on his person, any substance that is classed as a noxious substance if his purpose is to use the substance as a weapon. If on the other hand, he was in the kitchen of his restaurant and he was being attacked by the alleged thief, then Polapady would have the right to grab any noxious substance such as any spice in his kitchen he would use in cooking and throw it into the face of the man who is attacking him.

However, people do have the right to protect themselves using as much force is necessary. The determination as to how much force is necessary is something the courts will essentially decide.

It is my belief that unless the prosecutor chooses to withdraw the charges against Polapady and instead proceeds against him on the charges, Polapady will be convicted of those charges.

The man he assaulted technically wasn’t committing a crime and although as I said earlier, him being in the area of the parked cars when he himself didn’t have a car in that parking lot is suspicious but the law doesn’t permit private citizens to make citizen’s arrests simply because a person looks suspicious. The most he can do is simply ask the man why he is where he is and if the man has no right to be there than the citizen can ask him to leave. If he doesn’t, then the citizens should call the police and have the man removed from that particular area he is in. This Polapady didn’t do and he could be subjected to a civil suit for injuries sustained and false arrest. 

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