Canada’s Lucky Moose Bill allows citizen arrests with reasonable force.
Having visited one of the latest retail crime victims, it is frustrating that what we warned about years ago fell on deaf ears.
This Auckland shopkeeper followed a thief only to be brutally assaulted, while in Rotorua on December 14, a Four Square washeld up and staff threatened. Sadly, what’s reported is the tip of a crime iceberg. In 2023 less than 40% of crime was reported to police.
Being chair of the Ministerial Advisory Group on the Victims of Retail Crime I have no time for those who try to blame Captain Cook. New Zealand’s been through depressions, recessions and wars without bashing up the local dairy.
What I do see us losing, bit by bit, is the self-policing society we had. Small crimes go unpunished leading to larger crimes with real human consequences.
Respect for the law, for private property, and for our institutions is breaking down.
Instead of working for something, it can be taken.
In our schools, the biggest issue since 2020 wasn’t vaping but violence. As the Dairy and Business Owners’ Group pointed out to Parliament recently, “for every vaping standdown [2020-2023] there’s been 5.5 more for ill-discipline or violence”. That does not include 6028 standdowns for drugs and alcohol that never gets mentioned.
While we have lodged the first workstream with the second not far behind, I know that whatever law change we secure it’s one part of a jigsaw.
We need the courts to set expectations and hold people to account rather than accept excuses. We need a fundamental shift in approach to correctional policy, how social welfare is applied on the ground and in education.
For too long we’ve allowed the bar to slip ever lower when in the first nine months of 2014, just 10 years ago, reported crime was hundreds of per cent less than in 2024.
So what Dame Jacinda Ardern called the team of five million to do in the battle against Covid-19 needs to be applied to this battle against crime. Crime eats away at civil society like cancer. This is not just a job for police. It’s a job for us all.
Our common law predates New Zealand by hundreds of years and that common law has long recognised a right to defend property and possessions. Yet since 1893 here, and 1893 is no misprint, you’ve had little real power to stop someone coming on to your farm, a workshop, dairy, or a fashionable boutique in central Auckland and making off with whatever property that thief desires.
Unless that thief takes something worth more than $1000 during the “day”, you cannot effect what’s popularly called citizens’ arrest.
In reality, “citizen’s arrest” are more justifications and immunities than a specific power. As “day” is defined as 6am to 9pm and most retail theft involves goods below $500, it is hard to apply.
Even where goods are worth more than $1000, you may arrest but you cannot restrain while ‘reasonable force’ is unreasonable.
It is defined as not striking or doing bodily harm and given a scratch or a bruise, the breaking a “skin-like membrane”, is an injury, reasonable force really means no force.
Sunny Kaushal. Photo / Jed Bradley
Across the Tasman, Australian Commonwealth law defines reasonable force to defend property, to prevent trespass or remove a trespasser as anything so long as “death or really serious injury” does not occur. That’s clearly different from a scratch here.
Canada had similar wording to what we have here up until 2012. So, what caused our cousins there to change?
It was the 2010 case of David Chen from the Lucky Moose Food Mart in Toronto. A serial shoplifter was caught in the act but was lost when he escaped on a bike only to return an hour later to steal again.
This time Chen and two staff tied him up, put him in the back of a van and called police only for Chen to be charged with false imprisonment and excessive force.
The trial judge found Chen igniting a public outpouring of support that led to Bill C-26 ‘the Lucky Moose Bill’.
This law trusted all Canadians to perform a citizen’s arrest regardless of value or the time of day and using such force that is reasonable in the circumstances. The same definition the UK has and neither there, Australia or Canada have experienced vigilantism.
As a realist I know that empowering the team of five million, whether the editor of the NBR nabbing a shoplifter, tradies in Christchurch stopping a thief or enabling a security guard to be more than a deterrent, is no magic bullet. Yet it’s a start. A start that would cause shoplifters, burglars or robbers to “take an umm” than to act with the near impunity they think they have.
Sunny Kaushal is the chairman of the Dairy and Business Owners Group Inc. and president of the Crime Prevention Group.
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