A Toronto restaurant owner is facing assault charges after fighting with a man he says has 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.
Polapady, who lives above the restaurant with his wife and two children, told CBC News that he caught the same 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.
The situation came to a boiling point last August when Polapady decided to confront the man. On Aug. 17, Polapady's van was broken into and a GPS unit stolen. The theft was caught on his security cameras. Four days later, Polapady spotted the man in the alley behind his restaurant and confronted him.
Polapady armed himself with a broom handle and the two men tussled in a confrontation captured by a surveillance camera.
Police allege 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, Polapady struck the man with the broom handle and — during a portion of the struggle that happened off-camera — threw spices into the man's face.
'I had to run for my life'
The camera captures the two men trading blows. Polapady eventually flees from the larger man, who is then seen riding away on his bike in the opposite direction.
"He was physically very strong," Polapady told CBC News. "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 questioned by police but the only charges police laid were against Polapady for assault causing bodily harm, assault with a weapon and administering a noxious substance, a reference to the spices.
Police have confirmed to CBC News that the man they arrested and questioned after the incident has multiple theft convictions.
Const. Wendy Drummond said police investigated but didn't find enough evidence to support charges against the man who struggled with Polapady.
"We responded early in the morning to reports of a break and enter," said Drummond. "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."
Self-protection laws unclear
But determining exactly 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 stolen from his store.
The shopkeeper, David Chen, was originally charged with assault and forcible confinement before a judge threw out the charges.
Last February, with an election threat looming, the Conservatives introduced Bill C-60, which would give shop owners more flexibility to make citizens' arrests. It became known as the Lucky Moose bill, named after Chen's shop.
The bill died when Parliament was dissolved for last May’s federal election. The bill, now renamed as C-26, is currently in second reading.
Lawyer Calvin Barry, a former Crown prosecutor, is representing Polapady. He said new legislation is needed to clarify the rights of people and property owners forced to defend themselves or their property against criminals.
"Even the judiciary is having problems trying to weave themselves through this complicated area of the law of excessive force, self-defence, peaceable possession of property, how much force can you use," he said. "There's a lot of variables. Anything that can help make the law more understandable has to be applauded. I think we're getting there. Hopefully we can get it right so people know what they can and can't do."
Polapady, meanwhile, says he is left with a stack of legal bills. Worse, he now feels he's at the mercy of thieves.
"Certainly I'm worried about my family, that's my first priority. And secondly my business and our neighbourhood."