The Shopkeeper’s Privilege and Canadian Tort Law

Mitchell McInnes, Adam Simpson

Abstract


Shoplifting is a major issue in Canada, with 87 percent of small and medium sized stores victimized each year. As a result, shopkeepers face a difficult decision between allowing this loss of product, or detaining the individual and facing tortious liability for an unlawful arrest. The legal debate regarding allowing a shopkeeper’s privilege to detain an individual, when they have reasonable suspicion of theft, attempts to balance competing values of personal liberty and the protection of property. Due to the changing context surrounding this issue, the Ontario Superior Court of Justice recently endorsed the shopkeeper’s privilege in Mann v. Canadian Tire Corporation Ltd. In Mann, Justice Akhtar drew on existing Canadian, American, and United Kingdom jurisprudence to articulate a new test for shopkeeper’s privilege in Canada.

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