Law Times

Law TiMes • March 18, 2013 Page 7 COMMENT Citizen's arrests provide golden opportunity to politicians Y ears ago when I worked for The Globe and Mail in Montreal, there was a story in the papers about a grumpy pharmacist in one of the city's poorer neighbourhoods. He was sick and tired of druggies breaking into his store over the transom at night. Friends told him to install an alarm system or at least board up the transom or paint his store name on it. He came up with what he thought was a better idea. He circulated a warning in the community that he was spending his nights dozing in the dark at the back of the store with a loaded rifle ready to come out shooting at any intruders. He only had to do it a few times to get his message across to neighbourhood druggies. The man saw himself as a law-abiding citizen defending his property. He never killed or wounded anyone, but police took a different view. They saw it as armed assault or even attempted murder. After a few confrontations with druggies, they charged him. Even though the court acquitted him, it upheld the law. Angry storeowners can't shoot at anyone, not even druggies, unless their own lives are directly and clearly under attack. ecutor said the arrest occurred Self-defence is fine; shooting more than an hour after the to scare a possible thief isn't. theft. It was storeowners who got In his verdict, Ontario Court the message. There would be no Justice Ramez Khawly decided more transom shooting galleries Chen caught Bennett only bein the middle of the night. They cause he was coming back to had to go back to calling the pick up his bicycle to fit all of the cops when they heard someone stolen flowers. As such, it was all trying to break in. part of the same flight and thereLet's jump ahead to Toronto. fore it was a citizen's arrest. On May 23, 2009, grocer David Richard Cleroux So the judge acquitted Chen Chen spots Anthony Bennett of all charges against him. on the street and recognizes him As he left the court, a happy Chen said as the guy who stole flowers from his store earlier in the day. Chen and two employees what Canada needs is a better law for chase down Bennett, tie him up, throw him shopkeepers victimized by thieves. The public outcry grew louder. Chen's in their van, and head for the police station. But they spot the cops arriving, so they stop lawyer Peter Lindsay said the problem goes their van and throw open the rear doors so beyond a thief stealing a bunch of flowers. Thieves have victimized his client on the authorities can see their prize tied up on the floor. The cops do as cops everywhere several occasions and shoplifting is a huge do when in doubt — they arrest everybody. problem in Canada, he argued. Talk about throwing a bone to politiThey charge Chen and his two employees cians. Local MP Olivia Chow came out in with assault and forcible confinement. Their reasoning is that you can't just favour of a new citizen's arrest law that gives pick up a guy on the street, decide he's the victims of crime more power to defend one who stole a bunch of flowers, tie him themselves from crooks. Were Prime Minister Stephen Harper's up, throw him in a van, and speed off to a cop station. Chen and his employees ar- Conservatives going to allow the NDP to gued it was a citizen's arrest, but the pros- outshine them on a law-and-order issue? The Hill There was no chance of that happening. In no time at all, Bill C-26 was on the order paper and through Parliament as fast as a thief running off with a bunch of flowers. The law came into force last week. According to the Harper government, the legislation means owners, "or someone authorized by them," will be able to arrest a suspect within a reasonable amount of time after having found that person committing a criminal offence either on their property or in relation to it. That means they can chase crooks down the street. But they had better be careful — the new citizen's arrest authority will apply only in circumstances where it's not feasible for a police officer to make the arrest. Storeowners, however, aren't out of the woods yet.  Store detectives chasing after old ladies caught shoplifting are still going to have some explaining to do, especially if they tie them up and throw them in the back of a van. And for those now tempted to confront thieves with guns, that's still probably not a good idea. LT Richard Cleroux is a freelance reporter and columnist on Parliament Hill. His e-mail address is richardcleroux@rogers.com. Is it better to not know who your legal opponent is? BY OlIVIER GuIllAuME For Law Times T would take,  I arrived just in time to start my match. I essentially got out of my car, registered at the front desk, and headed towards the court where I was going to play without even looking at the tournament draw or who my opponent was that day. An older, poorly shaven man greeted me. He was not wearing any tennis clothing from any of the big manufacturers but instead had a plain grey T-shirt on. My first impression was that I should be able to beat this guy. The first set was close before my opponent ran away with the match. I ended up losing by a  score of 6-4, 6-2.  After the match, I learned I had just played the No. 1 seed in that tournament. I was quite surprised given that I still  felt I should have beaten my opponent. I was even more surprised when I later learned my opponent had crushed everyone else in the tournament, including people who would routinely beat me. I  ended up  obtaining the best score in the tournament against the No. 1 seed and the eventual winner. There is no doubt in my mind that had I known who I was playing that day, the result would likely have been a lot worse for me. Another example that comes to mind was when I played squash for the first time against someone known as the Brit. Given that I was new to Toronto, I had asked the squash pro at my new club to recommend some squash opponents for me. One of the first people I played was the Brit. I certainly had no idea who the Brit was before we played that first time. We ended up having a very close  match that I won. We soon began playing on a regular basis and to my dismay, I never beat him again in any sort of legitimate encounter. Again, had I known about the Brit's squash reputation in advance of our first match, I would have likely lost our first encounter. These examples might suggest it may be better not to know anything about your opponent heading into battle. However, I am of the view that as long as you are cognizant of your own presumptions and biases, the more you know about your legal opponent, the better off you will be. Nothing can replace thorough preparation and that includes knowing as much as you can about your legal opponents. LT u SPEAKER'S CORNER he old adage "know thy enemy" certainly applies in litigation when it comes to knowing the lawyers and law firms representing the opposing parties. But what if you did not know anything about the reputation or tendencies of your legal opponents? Would you actually perform better? It is safe to say that whether you are a plaintiff-side lawyer looking at a statement of defence or a defence counsel browsing through a statement of claim for the first time, one of the first things you will notice is who is acting for the opposing party. I can really only speak from a personal injury and insurance defence standpoint, but usually as a defence lawyer, my first perception of whether a claim is legitimate or potentially a significant matter relates to who is representing the plaintiff. Certain plaintiff-side personal injury law firms specialize in claims seeking significant damages and they would not normally bother taking on a case with a low value or where liability was contentious. On the other hand, there are quite a few plaintiff-side personal injury law firms that seem to have their fair share of weak cases where liability is a big question mark. The reputation of the lawyer or the law firm can provide a good glimpse into how the litigation will unfold. From the  defence perspective, is the plaintiff lawyer known as unreasonable and inflexible?  Is the plaintiff lawyer known to make outlandish settlement demands that have little to no rationale behind them? Similarly, from the plaintiff perspective, is the defence lawyer known as being cheap and stubborn when it comes time to negotiate? Even if you don't recognize the name of the lawyer representing the opposing party, the Internet and particularly law firm web sites provide a great deal of information for you to form an opinion of your legal adversary. If a firm has 10 lawyers and it is the most junior lawyer there acting on the file, that might be enough to inform you, rightly or wrongly, on how important the claim may be. Even something as simple as a lawyer's law society number on a pleading can tell you roughly what vintage or year of call the person may be. If that is not enough, you can always ask colleagues about your opponent's reputation. In my view, most lawyers would agree  that having as much information as possible on an opposing party's counsel can be of some benefit in deciding how to handle a claim. However, once you know who your legal opponent is, it can be difficult to stop your subconscious mind from making conclusions or acting in a certain manner based on the other lawyer's reputation. For example, if you perceive the plaintiff 's counsel as a leader in the field, you might wrongly expect that any claim that lawyer acts on will be worth a lot of money. While this type of information is definitely important to know, it sometimes has the effect of moulding the defence lawyer's subconscious mind into thinking the plaintiff 's matter can only settle for an unusually large amount of money when that may not be the case. The same situation may arise on the other side where the plaintiff-side lawyer's subconscious mind might think the case will not be able to settle without substantial compromise. By the time you have practised law for a few years in a certain field, you may know just about every other lawyer in that area. But what if you had no idea who your legal opponent might be? Would this lead to a better result? Certainly, when I was a young lawyer in my first few years of practice, I did not know much, if anything, about my legal opponent. This led me to take tough positions against very senior counsel with sometimes surprisingly good results. In particular, I can recall one claim where I faced off against a senior experienced litigator and simply held ground with my client's position despite enormous pressure and curveballs from the opposing counsel. While trying to illustrate how not knowing anything about your legal opponent can sometimes lead to better results, I am reluctant to provide concrete examples from my legal experiences without infringing on the deemed-undertaking rule or naming other lawyers. However, I can illustrate the point through some of my sporting experiences. More than 20 years ago, I was scheduled to play a men's open tennis tournament in Kingston, Ont. Due to my  poor estimate of how long the drive www.lawtimesnews.com Olivier Guillaume is a partner who handles litigation matters at Borden Ladner Gervais LLP in Toronto.

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