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Published online by Cambridge University Press: 12 December 2014
In this paper, we use postcolonial theories of temporality—specifically the idea of belatedness—to examine how literal forms of lateness inform the so-called Lucky Moose case, wherein Chinese-Canadian grocer David Chen tardily performs a citizen’s arrest in Toronto. Canadian news media outlets, the Chinese-Canadian community, and R v Chen (2010) all contribute to the construction of Chen as an active legal subject, capable of working through the law on his own terms and in his own temporal framework. Consequently, Chen’s belatedness can be understood as part of a larger politics that serves to transform the temporality of citizenship and citizen’s arrest law in Canada.
Dans cet article, nous nous appuyons sur les théories postcoloniales de la temporalité, plus particulièrement l’idée de la tardivité, afin d’examiner comment des retards, au sens littéral, influencent l’affaire dit Lucky Moose, dans laquelle l’épicier sino-canadien David Chen arrête un contrevenant de manière tardive à Toronto. Les services médiatiques canadiens, la communauté sino-canadienne et R c Chen (2010) contribuent tous à l’idée que Chen est un sujet légal actif capable d’interpréter la loi selon ses propres conditions et son propre cadre chronologique. Par conséquent, la tardivité de Chen peut être interprétée dans un contexte politique plus large permettant de transformer la temporalité de la citoyenneté ainsi que la loi sur l’arrestation par un citoyen au Canada.
1 R v Chen, 2010 ONCJ 641 (hereafter referred to as Chen).
2 George Cohon, chairman of Moose in the City, quoted in Moose Prints (Toronto: The Black and White Guys, 2000), 4.
3 Bhabha, Homi. The Location of Culture (London: Routledge, 2012), 364.Google Scholar
4 Multiculturalism has been interpreted as multiracialism. For example, multiculturalism, according to the Ontario Ministry of Culture and Recreation, entails the association of races with each other in order to enhance the contribution each can make. Bancroft, George W., ed., Outreach for Understanding (Toronto: Ministry of Culture and Recreation, 1977), 9.Google Scholar
5 Mawani, Renisa, “‘Cleansing the Conscience of the People’: Reading Head Tax Redress in Multicultural Canada,” Canadian Journal of Law and Society 19.2 (2004): 139.Google Scholar
6 The Chinese Immigration Act of 1885 was used to heavily control Chinese immigration into Canada by imposing a head tax on all Chinese immigrants, while the Chinese Immigration Act of 1923 (often known as the Chinese Exclusion Act) effectively closed off almost all Chinese immigration to Canada, except for immigrants who fell into the categories of merchant, diplomat, or foreign student.
7 In the nineteenth century, Victorian anthropologists categorized races according to their relative progress in ascending an imaginary ladder of “civilization.” Members of savage and barbaric races needed to acquire “civilized” qualities in order to make them “better” citizens. Within this racialization process, colonial agents in British Columbia during the mid-1870s to mid-1880s denied that the Chinese had “any capabilities for citizenship,” conceptualizing them as “unimprovable” racial opposites to Anglo-Saxons. See Good, Reginald, “Regulating Indian and Chinese Civic Identities in British Columbia’s ‘Colonial Contact Zone,’ 1858–1887,” Canadian Journal of Law and Society 26 (2011): 81.CrossRefGoogle Scholar
8 In Quong-Wing v The King (SCC 1914), the Supreme Court of Canada upheld Chapter 17 of the Statutes of Saskatchewan, which prohibited any white woman from working in a restaurant, laundry, or any other kind of business owned, kept, or managed by any “Chinaman”; for a discussion of the case, see also Backhouse, Constance, Colour-coded: A Legal History of Racism in Canada, 1900–1950 (Toronto: University of Toronto Press, 1999)Google Scholar, chapter 5. The act was ostensibly aimed at promoting “the interest of morality” by “protecting” white women from the immoral advances of Chinese immigrants. Despite being a naturalized British/Canadian citizen, restaurant owner Quong Wing was found to be a “Chinaman” because he was born in China to Chinese parents. Similar regulations were introduced in other provinces: for example, Ontario introduced its Act to Amend Factory, Shop and Office Building Act S.O. (c 40) in 1914, which ensured that “no Chinese person shall employ in any capacity or have under his direction or control any female white person in any factory, restaurant or laundry.” In fact, Chinese small businesses were by-products of Canadian laws that had prohibited Chinese subjects from working at or owning trades and businesses that were in direct competition with white businesses. See Rhyne, Darla, Visible Minority Businesses in Metropolitan Toronto: An Exploratory Analysis (Ontario: York University Institute for Behavioural Research, 1982).Google Scholar
9 Often established in the physical fringes of downtown areas, Chinatowns were legitimized by government agents as a means to promote a “white European hegemony” by separating white Canada from foreigners, such as the Chinese. See Anderson, Kay, Vancouver’s Chinatown: Racial Discourse in Canada, 1875–1980 (Montreal: McGill-Queen’s University Press, 1991)Google Scholar; Lai, David, Chinatowns: Towns within Cities in Canada (Vancouver: University of British Columbia Press, 1988).Google Scholar
10 See Said, Edward, Orientalism (New York: Vintage Books, 1978)Google Scholar; Said, Edward, Culture and Imperialism (New York: Vintage Books, 1993).Google Scholar
11 Mawani, “Cleansing the Conscience,” 144.
12 Bhabha, 340–1.
13 Ibid., 340.
14 Chen, para 22.
15 Bhabha, 361.
16 Bhabha, 363.
17 See Hudson, Barbara, “Beyond White Man’s Justice: Race, Gender and Justice in Late Modernity,” Theoretical Criminology 10.1 (2006): 29–47CrossRefGoogle Scholar; Razack, Sherene, Race, Space and the Law: Unmapping a White Settler Society (Toronto: Between the Lines, 2002)Google Scholar; Thobani, Sunera, Exalted Subjects: Studies in the Making of Race and Nation in Canada (Toronto: University of Toronto Press, 2004).Google Scholar
18 Hudson, “Beyond White Man’s Justice,” 30.
19 Pierre Trudeau, “Federal Response to Multiculturalism,” Appendix to Hansard, October 8, 1971, http://www.canadahistory.com/sections/documents/Primeministers/trudeau/docs-onmulticulturalism.htm.
20 Thobani, Exalted Subjects, 163.
21 Ng, Maria N., “Chop Suey Writing: Sui Sin Far, Wayson Choy, and Judy Fong Batesm” Essays on Canadian Writing 65 (1998): 183.Google Scholar
22 Ng, “Chop Suey,” 171.
23 As Anderson (Vancouver’s Chinatown) has noted, it was in the space of Chinatowns that the concept of a Chinese race became materially cemented and naturalized in the everyday life of Canadians.
24 Interview with the author, July 17, 2013.
25 Cho, Lily, Eating Chinese: Culture on the Menu in Small Town Canada (Toronto: University of Toronto Press, 2010), 74.Google Scholar
26 See Ong, Aihwa, Flexible Citizenship: The Cultural Logics of Transnationality (Durham: Duke University Press, 1999).Google Scholar
27 Ibid., 43–44.
28 This selection of highly skilled immigrants is a consequence of changes in the point system used by Citizenship and Immigration Canada. In 2002, the federal department’s point system was modified to put particular stress on language skills, education, and labour market experience. These changes led to a sharp drop in the number of Chinese immigrants to Canada. See Li, Wei and Lo, Lucia, “New Geographies of Migration? A Canada-U.S. Comparison of Highly Skilled Chinese and Indian Migration,” Journal of Asian American Studies 15.1 (2012): 1–34.CrossRefGoogle Scholar
29 Ibid., 10.
30 Chen, para 48.3.
31 Chen, para 83. Chen’s video surveillance footage of the incident can be found online at The Toronto Sun (http://www.torontosun.com/news/columnists/joe_warmington/2009/05/26/9569326-sun.html?menuID=260#).
32 Chen, para 48.4.
33 Chen, para 65.
34 Despite the case being what the judge calls a “mundane matter” (Chen, para 7), it inspired a large amount of news coverage across Canada. A Factiva search on English-language news items solely about the Lucky Moose case (e.g., the original criminal incident, reports on the trial, and items on the Lucky Moose Bill) among Toronto newspapers alone (e.g., The Toronto Star, The Toronto Sun, The Globe and Mail, and The National Post) yields more than 70 articles, many of which were reprinted in other major Canadian newspapers (e.g., The Vancouver Sun) and outlets (The Canadian Press). Toronto editions of Chinese-language news media, such as Ming Pao and Sing Tao, also covered the case. Ming Pao’s coverage of the case included at least 40 articles.
35 Kuitenbrouwer, Peter, “The Picture of Lawfulness: Stephen Harper Visits the Toronto Grocer who Inspired Proposed Changes to Canada’s Citizen’s Arrest Law,” National Post, February 18, 2011, A3.Google Scholar
36 Ibid.
37 Peter Kuitenbrouwer, “Grocers to the Defence,” National Post, October 26, 2010, A3.
38 Dan Robson, “Shoplifters Kept Fleeing, Grocer Testifies,” Toronto Star, October 8, 2010, GT4.
39 See Kim, Claire Jean,“The Racial Triangulation of Asian Americans,” Politics and Society 27.1 (1999): 105–38CrossRefGoogle Scholar; Lian, Jason Z. and Matthews, David Ralph, “Does the Vertical Mosaic Still Exist? Ethnicity and Income in Canada, 1991,” Canadian Review of Sociology and Anthropology 35.4 (1998): 461–81.Google Scholar
40 Chen, para 91.
41 Joe Friesen, “Blair Defends Arrest of Grocer who Nabbed Thief,” The Globe and Mail, October 30, 2009, A14.
42 Tu Thanh Ha, “Kenney’s Visit Buoys Embattled Grocer,” The Globe and Mail, September 28, 2009, A9.
43 Rita Trichur and Carmen Chai, “Charged Chinatown Grocer ‘Victim of Crime,’ Kenney says,” Toronto Star, September 28, 2009, GT05.
44 For example, see Lisa Lowe, “Heterogeneity, Hybridity, Multiplicity: Marking Asian American Differences,” Diaspora 1.1 (1991): 28.
45 Hudson, “Beyond White Man’s Justice,” 31.
46 For example, the demand for Chinese head tax redress as discussed in Mawani, “Cleansing the Conscience”; Dyzenhaus, David and Moran, Mayo, eds., Calling Power to Account: Law, Reparations, and the Chinese Canadian Head Tax (Toronto: University of Toronto Press, 2005).CrossRefGoogle Scholar
47 Robson, “Shoplifters Kept Fleeing,” GT4.
48 Peter Kuitenbrouwer, “Shopkeeper Describes Slow Police Response to Regular Incidents of Theft,” National Post, October 8, 2010, A5.
49 Ibid.
50 Quoted from Alan Young, “When Citizens Act Like Police,” Toronto Star, October 30, 2009, A23.
51 While the Citizen’s Arrest and Self-Defence Act (2013) allows for a reasonably belated citizen’s arrest, it requires that the citizen call the police and deliver the arrestee without any time delay. To avoid making a potentially illegal citizen’s arrest, citizens need to ensure timely police involvement. Citizens are only allowed to make an arrest when it “is not feasible” for the police to do so. Again, the new act suggests that arrest is primarily considered a police power, and citizens are discouraged from using this power.
52 Chen, para 106.
53 Here, Khawly makes a reference to Sampson, Robert and Bartusch, Dawn Jeglum, “Legal Cynicism and (Subcultural) Tolerance of Deviance: The Neighborhood Context of Racial Difference,” Law and Society Review 32 (1998): 777.CrossRefGoogle Scholar Sampson and Bartusch argued that legal cynicism, dissatisfaction with the police, and tolerance of various forms of deviance can be explained by structural characteristics of a neighbourhood, which have been often confounded with demographic characteristics of individuals (e.g., social economic status, race/ethnicity, age, etc.). Although the judge borrows the concept of “moral or legal cynicism” from Sampson and Bartusch, it appears that he misses the point of their overall research. That is, “Chen’s community” is best understood by the structural features of the neighbourhood context (e.g., level of concentrated disadvantage and lack of resources that characterize Chinatowns across Canada). In the rest of his decision, the judge makes no reference to any structural features that might account for the neighbourhood’s cynicism.
54 Chen, para 104.
55 Chen, para 106.
56 Ibid.
57 Richard Schur, “Critical Race Theory and the Limits of Auto/Biography: Reading Patricia Williams’s The Alchemy of Race and Rights through/against Postcolonial Theory,” Biography 25.3 (2002): 457.
58 Trichur and Chai, “Charged Chinatown Grocer,” GT5.
59 “Victims’ Rights Actions Committee,” accessed August 21, 2014, http://www.vracommittee.com/.
60 The (Toronto) Chinese community was mobilized by the city’s Chinese-language newspapers as well as through the VRAC. Through these means, the Chinese community donated money to contribute to Chen’s legal defence, signed petitions to change the Criminal Code so that Canadian property owners can better defend their own personal property, and visibly supported Chen in the courtroom during his trial.
61 Garland, David, The Culture of Control: Crime and Social Order in Contemporary Society (Chicago: University of Chicago Press, 2001).Google Scholar
62 Ibid., 11.
63 The exact wording is as follows: “This enactment amends the Criminal Code to enable a person who owns or has lawful possession of property, or persons authorized by them, to arrest within a reasonable time a person whom they find committing a criminal offence on or in relation to that property” (http://laws-lois.justice.gc.ca/eng/annualstatutes/2012_9/FullText.html).
64 While these legal changes inject belatedness into Canadian citizenship itself, they are not without criticism. A number of legal critics, including representatives for the Canadian Civil Liberties Association, have criticized the lack of temporal specificity introduced into the law through the phrase “reasonable time.” The term “reasonable” is “fraught with some ambiguity” (Alan Young quoted in Timothy Appleby and Jill Mahoney, “New Citizen’s Arrest Law Greeted with Applause, Criticism,” Globe and Mail, March 12, 2013, A4) because it is not based on any definable criteria. What counts as “reasonable” will need to be determined by the courts on a case-by-case basis. See Jill Mahoney, “Five Things You Need to Know about New Citizen’s Arrest Law,” Globe and Mail, March 11, 2013, Breaking News.
65 Bissoondath, Neil, Selling Illusions: The Cult of Multiculturalism in Canada (Toronto: Penguin, 1994).Google Scholar
66 Mackey, Eva, The House of Difference: Cultural Politics and National Identity in Canada (Toronto: University of Toronto Press, 2002).Google Scholar