COMING TO A STORE NEAR YOU?
Keywords:merchants, agents, shopkeepers, shopkeeper’s privilege, investigative detention, false imprisonment, Canadian courts, Ontario, citizen’s arrest, reasonable grounds, theft, Mann v Canadian Tire
When it comes to suspected shoplifting, Canadian merchants and their agents (collectively, “shopkeepers”) have traditionally faced a dilemma. Many Canadian courts have held that having reasonable grounds to believe an offence has been committed is insufficient to perform a lawful citizen’s arrest; rather, an offence must have actually been committed. As a result, shopkeepers who detain customers reasonably believed to have committed theft risk civil liability for false imprisonment if their belief turns out to have been mistaken. Yet, at the same time, shopkeepers have a legitimate interest in responding to suspected theft so as to protect their property and their livelihood. In view of this dilemma, the Ontario Superior Court in Mann v Canadian Tire Corporation Limited recognized, for the first time in Canada, a “shopkeeper’s privilege” permitting shopkeepers to perform brief investigative detentions based on a reasonable belief that theft has occurred. This article examines this development and argues that while there is space in Canada for shopkeeper’s privilege, it must be carefully circumscribed.