The trial of David Chen continues at Old City Hall in Toronto.
As Anthony Bennett sat in jail, accused of adding five fresh petty thefts to his long criminal career, grocer David Chen spent another day off the job and in court for having taken the decision to stop the inveterate shoplifter in May of 2009.
For that, Mr. Chen and two employees of his small Chinatown shop are on trial, charged with assaulting and forcibly confining Mr. Bennett, a drug addict with a record for stealing plants and flowers and selling them on the street. Testimony wrapped up Tuesday, and closing arguments are scheduled for Oct. 25.
Mr. Bennett, meanwhile, is to appear in court Wednesday on new counts in connection with thefts of plants, on five dates between May and July this year, from Jungle Fruits in Kensington Market, not far from Mr. Chen's Lucky Moose Market.
During a break in the Chen trial Tuesday, defence lawyer Peter Lindsay wondered aloud why Toronto police did not also charge Mr. Bennett for breaching the terms of the probation he was on for having stolen from Mr. Chen and another shop owner, Hamid Kheiry, on May 23 last year.
"A standard term of each probation order is to keep the peace and be of good behaviour," Mr. Lindsay said, noting that the fresh allegations against Mr. Bennett would suggest a breach of that term.
The latest charges against Mr. Bennett, 52, only seemed to underscore the apparent incongruity of the prosecution of Mr. Chen and his colleagues, Jie Chen and Qing Li. Court has heard the men chased and caught Mr. Bennett, who had returned to the Lucky Moose to steal again about an hour after having taken $60 worth of plants from a sidewalk display.
When Mr. Bennett thrashed about, throwing punches and kicks, the men used a belt and rope to bind his feet and hands. Court heard that Mr. Chen had caught shoplifters before and had waited up to five hours for police to respond, so this time, he decided to hold Mr. Bennett in the back of a delivery van until officers could arrive.
Officers arrived mere moments later, but arrested and handcuffed the three captors, not just Mr. Bennett.
On Tuesday, Mr. Li testified that Mr. Bennett made death threats and menacing gestures to him as he stood beside the police cruiser in which Mr. Li was held after his arrest.
"He stood there with his hand pointed at me and said 'I'll kill you' many times," Mr. Li said through a Cantonese interpreter, while making a handgun-shooting motion with his hand. "Up to today I am still very nervous."
Pressed by prosecutor Eugene McDermott to explain why he helped bind and confine the thief but did not call the police, Mr. Li said, "I have never called the police; I do not know how to call the police."
Court also heard from Mr. Kheiry, owner of the King Flower Shop on King Street West, who was victimized by Mr. Bennett on the same day he stole from Mr. Chen.
Mr. Kheiry testified that in eight years as a shop owner, two shoplifters gave him serious trouble, one of them Mr. Bennett, whom he said started stealing plants from him on Mother's Day, 2008.
Fed up with his frequent stealing, "I said, 'Next time I see you, I will kill you'," Mr. Kheiry recalled having told Mr. Bennett a year later, on May 23, 2009, the day Mr. Chen would catch him.
The Crown argues Mr. Chen and his workers broke the law in apprehending Mr. Bennett only after he had returned to the Lucky Moose after his previous theft that day. A citizen's arrest is only allowed during the commission of a crime, and excessive force must not be used.
Mr. Lindsay had planned to argue, on constitutional grounds, that the law's immediate time frame is too narrow and thus denied Mr. Chen his right to protect his property. However, since Mr. Bennett has admitted under oath that he had returned to steal again, Mr. Lindsay might not have to make that case, since Mr. Bennett would have arguably been in commission of a crime when Mr. Chen caught him.
As for reasonable force, court has heard it was Mr. Bennett, not his captors, who used violence during the brief incident, Mr. Lindsay said outside court.