Ontario retailers, security guards, and store detectives are in a difficult position when seeking to protect their merchandise from shoplifters. The difficulties such individuals face in the criminal context were brought to the fore by the vigilante grocer David Chen, whose detention of a shoplifter led to his own arrest, charges, and criminal trial. Although I will return to the Chen case below, the main focus of this blog post is on the shopkeeper’s dilemma in the civil context.
Should retailers or its personnel detain suspected shoplifters to prevent the loss of property or should they do nothing because of the risk of facing an action for false imprisonment if they are wrong? This problem, and the state of the law as it existed in Ontario until very recently, was summarized in 1995 by Justice Cumming in Kovacs v. Ontario Jockey Club:
The state of the law makes it difficult for shopkeepers and businesses to take action against shoplifters. If the security personnel have reasonable and probable grounds to believe a crime has been attempted and act on that well-founded belief but ultimately cannot justify that position by being able to prove upon a preponderance of evidence that an offence was committed, they are themselves liable in a civil action for the tort of false imprisonment. On the other hand, if they do not detain the person whom they believe has committed a crime, a criminal may well escape being brought to justice.
The concern in these cases is that an offender will be able to leave the premises and escape liability. Should people in authority at these locales be granted special rights of arrest although they are private citizens and not peace officers? [1]
Justice Cumming answered his own question with a "no" 21 years ago as he found that neither the Criminal Code nor the case law supported the recognition of special rights of detention for shopkeepers and businesses.
The pendulum swung in the other direction on August 3, 2016 with the release of Justice Akhtar's decision in Mann v. Canadian Tire Corporation Limited. [2] The decision marks the first time a Court has recognized the existence of the so-called "shopkeeper's privilege" in Ontario and affords retailers and its personnel slightly more latitude in their dealings with suspected shoplifters.
Background: The Tort of False Imprisonment and subsection 494(2) Criminal Code
An individual or a company can be found liable to pay damages for false imprisonment when they hinder the freedom of movement of another person without lawful justification and without that person’s consent. The restraint need not be physical in nature; imprisonment can result from psychological or moral coercion.
There are two potential sources for a “lawful justification” to a detention or imprisonment of another: case law (also known as common law) or statute. Prior to Justice Akhtar’s decision in Mann, courts in Ontario held that a property owner seeking to justify a detention is required to establish that the crime was in fact committed by the detainee. In other words, an imprisonment could not be justified on the basis of suspected commission of a crime alone, even when reasonable and probable grounds to support the suspicion existed.
Powers of arrest are also set out in the Criminal Code. Under the Criminal Code, property owners and their agents are not afforded the same leeway as peace officers: they cannot lawfully arrest a person on the basis of having reasonable suspicion that the person may have committed an offence. [3]
Prior to being amended in 2012, a strict interpretation of subsection 494(2) of the Criminal Code required owners of property, or persons authorized by them, to arrest individuals who are found to be in the process of committing a criminal offence in relation to that property. Subsection 494(2) of the Code, as it read just prior to the 2012 amendments, provided as follows:
Any one who is
(a) the owner or a person in lawful possession of property, or
(b) a person authorized by the owner or by a person in lawful possession of property,
may arrest without warrant a person whom he finds committing a criminal offence on or in relation to that property.
The Code was amended in 2012 by the Citizen’s Arrest and Self-defence Act. [4] The Act was passed by Parliament in the wake of the public interest in the arrest of David Chen and his subsequent criminal case which were prominently featured in the media at the time. The relevant facts of the R. v. Chen et. al. case are as follows: Anthony Bennett stole some plants from the Lucky Moose grocery store in Toronto’s Chinatown district and promptly took off on a bicycle. David Chen, the owner of the grocery store, observed this theft through a review of the store’s video surveillance. Bennett returned to the store within an hour of the theft. Mr. Chen, with the assistance of two employees, chased Bennett down, restrained Bennett by binding his ankles and hands, and placed him in back of a van. When the police arrived on the scene they arrested both Bennett and Chen. Chen and the two employees were subsequently charged with assault and forcible confinement. They were ultimately acquitted at trial. [5]
The 2012 amendments to subsection 494(2) allows owners of property to arrest individuals “a reasonable time after” they commit an offence, provided that the owner believes on reasonable grounds that a peace officer would be unable to make the arrest:
The owner or a person in lawful possession of property, or a person authorized by the owner or by a person in lawful possession of property, may arrest a person without a warrant if they find them committing a criminal offence on or in relation to that property and
(a) they make the arrest at that time; or
(b) they make the arrest within a reasonable time after the offence is committed and they believe on reasonable grounds that it is not feasible in the circumstances for a peace officer to make the arrest.
Thus, subsection 494(2) of the Code, both prior to 2012 and afterwards, requires that an offence in relation to the property actually be committed for the arrest to be lawful. The limitations on the property owner’s powers of private arrest in the Criminal Code therefore mirrors the limitations that were imposed at common law prior to the Mann v. Canadian Tire Corporation Limited decision.
The Facts in Mann v. Canadian Tire Corporation Limited
The facts arising out of Professor Mann’s interactions with Canadian Tire employees are a bit peculiar, but the salient ones can be summarized as follows: the plaintiff, Professor Mann, attended a Canadian Tire store to buy equipment. An alarm was activated as Professor Mann passed through the store’s security sensors. He was approached by store employees. Professor Mann started filming with his smartphone. The store employees would not let Professor Mann leave until the plaintiff deleted the recording. When Professor Mann left the store afterwards, in fear of being pursued by Canadian Tire employees, he began to run. He then collided into some metal pipes located outside of the building, sustaining injuries in the process.
As a result of a summary judgement motion brought by Canadian Tire, the Court was asked to determine two issues: liability for false imprisonment and whether the injuries that the plaintiff sustained after his departure were too remote. This blog post focuses on the first issue.
The Shopkeeper’s Privilege
Justice Akhtar begins his analysis by recognizing the difficulty that retailers such as Canadian Tire have in protecting themselves against potential thieves. The judge also observes that courts in the United States have developed the defence of “the shopkeeper’s privilege” which allows store owners to detain a customer to investigate whether a theft has been committed without attracting liability for false imprisonment.
After a survey of the law in the United States, where the shopkeeper’s privilege exists, and the law in England, Wales and Canada, where it does not, Justice Akhtar determined that “there is a strong need for Canadian shopkeepers to be protected by a limited right to detain those they have reasonable and probable grounds to believe are or have stolen their merchandise.” [6] Accordingly, the Court recognized the defence of the shopkeeper’s privilege and set out the following conditions that must be met for the privilege to apply:
There must be reasonable and probable grounds to believe that property is being stolen or has been stolen from the shopkeeper’s place of business. A security alarm triggered when a person is in the process of leaving the store would be sufficient to provide such grounds.
The sole purpose of the detention must be to investigate whether any item is being stolen or has been stolen from the store.
The detention must be reasonable and involves inviting the suspect to participate in a search to resolve the issue. The privilege does not bestow a power upon the store owner to search the detainee without consent.
The period of detention should be as brief as possible and reasonable attempts to determine whether an item of property is being stolen or has been stolen should proceed expeditiously.
If the detained suspect refuses co-operation, the store owner is entitled to detain them using reasonable force whilst summoning the police and until they arrive. [7]
After outlining the parameters of this newly recognized defence, Justice Akhtar held that the defendant could not avail itself of it, as the detention did not meet the second condition: the detention was not for the sole purpose of investigating a possible theft, but the plaintiff had been detained as a result of the employees’ concerns with the plaintiff’s video recording in the store.
Conclusion
It is rare for a judge to break from precedent and create new law, particularly on summary judgment motions. Generally, the doctrine of stare decisis holds that a court is obliged to apply the previous ruling of a court of the same or higher rank when the ruling arose out of the same facts. However, as the Supreme Court of Canada has stated in Carter v. Canada (Attorney General), a trial court may reconsider settled rulings when there is a change in circumstances or evidence that fundamentally shifts the parameters of the debate. [8]
So what has changed in the 21 years since Kovacs v. Ontario Jockeys Club was decided? One change is the amendment to section 494(2) of the Criminal Code in 2012. Indeed, this is cited as one of Justice Akhtar’s justifications for why the Court ought to now recognize the shopkeeper’s privilege. [9] However, as discussed above, the amendment only expanded the temporal component of the property owners’ authority of arrest under certain circumstances. The Criminal Code, then as now, still only confers property owners authority of arrest in relation to crimes that are actually committed.
Another change cited by Justice Akhtar is the development and use of theft-prevention technology since 1800 when the law with respect to the onus on shopkeepers to justify an imprisonment was first pronounced. [10] But has the prevalence of these devices changed markedly since 1995 when Justice Cumming rendered his decision in the Kovacs case? Does the use of anti-theft technology in and of itself amount to a material change in circumstances that warrants changing the standard for justifying detention from one where a shoplifter needed to be caught red handed to one where reasonable suspicion is enough? Arguably, the increased presence of security cameras, electronic tags, and doorway sensors as fixtures in stores makes it easier to catch individuals in the actual commission of a crime, not harder. [11]
While the foregoing may raise interesting, if somewhat abstract, questions, the importance of the Mann v. Canada Tire Corporation Limited decision lies in the recognition of the shopkeeper’s privilege in Ontario. What does this case mean for retailers and its loss prevention personnel? While the bar for justifying detention has been lowered, store owners and its personnel ought to continue being very cautious in carrying out their investigation. The investigation must be carefully limited to the suspected theft. Cooperation of the suspected thief should be solicited. No search should be conducted of the suspect unless he or she consents. The use of force should also be avoided whenever possible, given that force is only justified after the detainee refuses to cooperate and that there is a lingering possibility that the amount of force may not be found to have been “reasonable.” In certain circumstances, the use of more than reasonable force may also attract civil liability for battery and/or criminal liability for assault.
We recommend that business owners have proper loss prevention policies in place to mitigate against the potential of being found liable in an action for false imprisonment. We invite those who are seeking to draft or update their existing policies to contact us. We are also happy to assist those who may have been unlawfully detained assess the merits of their case.
Disclaimer Suliman Law Firm has prepared this document for information only; it is not intended to be legal advice. You should consult us about your unique circumstances before acting on this information. Suliman Law Firm excludes all liability for anything contained in this document and any use you make of it.
[1] 126 DLR (4th) 576, 1995 CanLII 7397 at paras 88-89.
[2] 2016 ONSC 4926.
[3] Note: an exception occurs if the offender is escaping from and is being freshly pursued by persons who have lawful authority to arrest that person. See section 494(1) of the Criminal Code.
[4] SC 2012, c. 9.
[5] 2010 ONCJ 641
[6] Supra note 2 at para 39.
[7] Ibid at para 45.
[8] 2015 SCC 5, at para 44.
[9] Supra note 2 at para 44.
[10] Ibid at para at para 41.
[11] It would seem that Justice Khawly in the R. v. Chen case, supra note 5, and I are in agreement on this point. See para 48.