The Tort of False Imprisonment Involves the Improper Detaining of a Person Either With or Without ForceHelpful Guide to Understanding Conduct Constituting Tortious False Imprisonment

Commonly misunderstood and confused with the criminal law term known as 'false arrest', false imprisonment is a cause of action in civil law that arises from the total imprisonment of a person who is held, physically or otherwise, against the will of that person.  Essentially, where a person is fully deprived of freedom of movement as liberty, without consent and without a proper justification, a false imprisonment is said to occur.

The Law, jurisprudence

Specifically, the elements required for proof in a false imprisonment case were well stated within Kovacs v. Ontario Jockey Club, 1995 CanLII 7397 as:

[37]  The first issue is whether there has been false imprisonment.  The tort of false imprisonment and its rationale have been summarized in this way:

The action for false imprisonment protects the interest in freedom from physical restraint and coercion against the wrong of intentionally and without lawful justification subjecting another to a total restraint of movement by either actively causing his confinement or preventing him from exercising his privilege of leaving the place in which he is.

(Fleming, Law of Torts, 8th ed.  (Sydney: Law Book Co.  Ltd., 1992) at p.  27.)

[38]  Justice Linden notes in his text Canadian Tort Law, 5th ed.  (Toronto: Butterworths, 1993) at p.  46, that the name is somewhat of a misnomer, since the site of detention is not necessarily a prison, and since “false” is used in the sense of wrongful, not non-existent.

[39]  False imprisonment is not defined in Black’s Law Dictionary, 6th ed., but “false arrest” is defined as being:

A species of false imprisonment, consisting of the detention of a person without his or her consent and without lawful authority.  … Such arrest consists in unlawful restraint of an individual’s personal liberty or freedom of locomotion.  … An arrest without proper legal authority is a false arrest and because an arrest retains the liberty of a person it is also false imprisonment.  The gist of the tort is protection of the personal interest in freedom from restraint of movement.

[40]  In Prosser and Keaton on the Law of Torts, 5th ed.  (St.  Paul: West Publishing Co., 1984), the authors state at p.  47 that false imprisonment is sometimes called false arrest.

[41]  Despite the American authorities, it appears that in Canada the two terms are not used interchangeably.  Indeed, they are often alleged concurrently by a plaintiff.  An example is the recent Divisional Court case Nicely v. Waterloo Regional Police (Chief of Police) (1991), 1991 CanLII 7338 (ON SC), 79 D.L.R.  (4th) 14, 7 C.C.L.T.  (2d) 61, 2 O.R.  (3d) 612, per Rosenberg J.  In that case, the plaintiff sued the local police on several grounds of tort, including false imprisonment and false arrest.  He alleged that several police officers entered the plaintiff’s property without his permission and “falsely arrested” him.  This means the actual act of putting him under arrest, or charging him.  The plaintiff also alleged that he was falsely imprisoned when he was detained in the police car and at police headquarters.

[42]  “Arrest” is defined in Black’s Law Dictionary, 6th ed., as “[t]o deprive a person of his liberty by legal authority”.  “Imprisonment” is defined as:

The detention of a person contrary to his will.  … The restraint of a person’s personal liberty; coercion exercised upon a person to prevent the free exercise of his powers of locomotion.  … it may take place without the actual application of any physical agencies of restraint (such as locks or bars), as by verbal compulsion and the display of available force.  Every confinement of the person is an “imprisonment”, whether it be in a prison, or in a private house, or even by forcibly detaining one in the public streets.  Any unlawful exercise or show of force by which [sic] person is compelled to remain where he does not wish to be.

[43]  “Detention” is defined in Black’s as: “The act of keeping back, restraining or withholding, either accidentally or by design, a person or thing.  Detention occurs whenever [sic] police officer accosts individual and restrains his freedom to walk away…”.

[44]  The result of these definitions is that in reality there would not seem to be much of a distinction between false arrest and false imprisonment.  The latter conjures up an image of some kind of closed environment, but this is not necessarily the case.  All that is required is that the detainee’s freedom of movement has been restrained.  It may be that the tort of false arrest is somewhat broader than the tort of false imprisonment.  My comments that follow relate to the tort of false imprisonment.

Elements of a cause of action

[45]  False imprisonment differs from most other tort claims in its nature and in how it is to be proven.  The reason for this unique treatment is its serious nature and impact on the individual: as Fleming has stated, at p.  30, “[It] trenches not only on a man’s liberty, but also on his dignity and reputation”.

[46]  The plaintiff must prove three elements to establish the tort of false imprisonment.  He or she must have been totally deprived of liberty; this deprivation must have been against his or her will; and it must be caused by the defendant.  The onus then shifts to the defendant to justify the detention, based on legal authority under common law or statute: Kendall v. Gambles Canada Ltd., 1981 CanLII 2149 (SK QB), [1981] 4 W.W.R.  718 at p.  728, 11 Sask.  R.  361 (Q.B.).

[47]  It is unnecessary that there be actual physical force in making the arrest or in obliging the detained person to remain in one place.  All that is required is that there be a reasonable belief that an attempt to leave could result in force being used against the detainee: Lebrun v. High‑Low Foods Ltd.  (1968), 1968 CanLII 609 (BC SC), 69 D.L.R.  (2d) 433 at p.  437, 65 W.W.R.  353 (B.C.S.C.); supplementary reasons 70 D.L.R.  (2d) 718.  It is clear that “moral pressure” may suffice to constitute imprisonment, such as a situation where a plaintiff submits to the defendant’s acts for fear of public embarrassment: Campbell v. S.S.  Kresge Co.  (1976), 1976 CanLII 1275 (NS SC), 74 D.L.R.  (3d) 717 at p.  719, 21 N.S.R.  (2d) 236 (S.C.T.D.).

[48]  I observe that the American cases have found it appropriate to consider the taking of valuable property as circumstances leading to a conclusion of detention: see, for example, Ashland Dry Goods Co.  v. Wages, 302 Ky.  577, 195 S.W.2d 312 (1946), where the plaintiff’s purse was taken.

While a false imprisonment may occur without an arrest relating to criminal activity or concerns, it is said that an arrest without lawful authority is a false imprisonment.  Such was stated in Tschekalin v. Brunette, 2004 CanLII 1843 where it was said:

[50]  Anyone who intentionally detains or confines another is liable for false imprisonment unless that action is authorized by law.  An arrest without lawful authority constitutes false imprisonment, as does a failure to release a prisoner when required.

Protection of Shopkeeper

As per the elements of false imprisonment detailed above, it may be seen that store owners seeking to protect goods and wares from would be shoplifters would face great risks of false imprisonment without a balancing mechanism to enable a store owner to take reasonable efforts to detain a shoplifting suspect; and according, the law of false imprisonment includes a 'privilege' as an exception for shopkeepers who reasonably, and with certain limitations, detain perceived shoplifters.  The law relating to this 'privilege' was established in the case of Mann v. Canadian Tire Corporation Limited, 2016 ONSC 4926 where it was said:

[16]  Canadian Tire, like most shopkeepers, are in a difficult position in protecting themselves against potential thieves.  Security gates which trigger an alarm if goods have not been purchased and scanned are a commonplace feature in today’s stores.  One would expect shop owners like Canadian Tire to be able to stop and investigate a customer who activates an alarm when exiting the store premises.  That ability, however, is subject to the qualification that an offence must have occurred.  In other words, if a store owner is mistaken and no theft has occurred, their detention of a customer makes them liable for the tort of false imprisonment.

[17]  Different jurisdictions have taken diametrically opposed views on the subject.

[18]  In the United States, the courts have developed “the shopkeeper’s privilege”, a legal defence entitling a store owner to detain a customer for the purpose of determining if they have committed a theft and, at the same time, avoid the tort of false imprisonment if they are wrong.  The privilege exists at both common law and under statute in different states.

[19]  However, the shopkeeper’s privilege has been rejected in other jurisdictions.

The Law in England and Wales

[20]  The courts of England and Wales stand on the proposition that if a shopkeeper detains a customer suspected of theft, an offence must have been committed for a citizen’s arrest to be justified.

[21]  This statement of the law is first found in Hale's Pleas of the Crown (1800), vol.  II – a treatise on England’s criminal law written in the 1600s – where Sir Matthew Hale stated, at p.  77, that where a person is detained on the reasonable belief that they committed a felony, that felony must be shown to have been committed by either the detainee or another person “for were there no felony, there can be [no] ground of suspicion”.

[22]  In Walters v. W.H.  Smith & Son Limited, (1914) 1 K.B.  595, at pp.  602-603, Sir Rufus Isaacs C.J.  proclaimed that “[s]uspicion only without a felony committed, is no cause to arrest another”.  The court took the view that, by choosing to take action instead of seeking recourse through an arrest warrant or police assistance, the detainer “takes a risk upon himself by which he must abide”, and if the detainee ends up being innocent, there is no other lawful excuse for the arrest, even if the detainer acted bona fides (p.  607).

[23]  The court drew a sharp distinction between the arrest powers of a private citizen and those of the police:

Interference with the liberty of the subject, and especially interference by a private person, has ever been most jealously guarded by the common law of the land.  At common law a police constable may arrest a person if he has reasonable cause to suspect that a felony has been committed although it afterwards appears that no felony has been committed, but that is not so when a private person makes or causes the arrest, for to justify his action he must prove, among other things, that a felony has actually been committed: see per Lord Tenterden, C.J., in Beckworth v. Philby.  I have come to the conclusion that it is necessary for a private person to prove that the same felony has been committed for which the plaintiff had been given into custody.  In Hawkins' Pleas of the Crown, 7th ed.  (1795), bk.  ii., ch.  xii., p.  163, the law is thus stated: "As to the fourth particular, namely, in what manner an arrest for such suspicion is to be justified in pleading.  Sect.  18.  It seems to be certain, that ...  regularly he ought expressly to show that the very same crime for which he made the arrest, was actually committed.

[24]  The legislative provisions setting out private powers of arrest in s.  24 of the U.K.  Police and Criminal Evidence Act 1984 were subsequently taken to have the same meaning that “the powers of arrest without a warrant where an arrestable offence has been committed require as a condition precedent an offence committed” and were interpreted to go even further to find that, if the detainee ends up being acquitted, there can be no valid suspicion to warrant the arrest: R.  v Self (Graham), [1992] 1 W.L.R.  657, [1992] 3 All E.R.  476, at p.  660.  A Hong Kong court thought this to be a harsh pronouncement, but did not consider it further as the case was distinguishable based on the different legislation in force in the two jurisdictions: Hksar v. Cheung Ting Shan, 2001 WL 34057133 (CFI), [2001] HKEC 1280, at para.  13.

Developments in the United States

[25]  Early on, the position in the United States mirrored that of England and Wales: a merchant could only legally detain a suspected shoplifter for investigation if that suspect was, in fact, guilty of the crime.  No matter how reasonable the merchant’s suspicion may have been, only a subsequent conviction would protect the merchant from civil liability to the person detained: Pandjiris v. Hartman, 196 Mo.  539, 94 S.W.  270, 272 (1906).

[26]  However, later on, the courts began to recognise the predicament of store owners facing increased financial losses due to theft.  In Collyer v. S.H.  Kress Co., 5 Cal.2d 175, 54 P.2d 20 (1936), the Supreme Court of California empowered merchants who reasonably believed that a person had committed a theft to detain the person for a limited period of time for the sole purpose of investigating the facts, irrespective of whether a theft had occurred.  At pp.  180-81, the court held:

However, those authorities which hold, where a person has reasonable grounds to believe that another is stealing his property, as distinguished from those where the offense has been completed, that he is justified in detaining the suspect for a reasonable length of time for the purpose of investigation in a reasonable manner must necessarily proceed upon the theory that probable cause is a defense.  And this is the law because the right to protect one's property from injury has intervened.  In an effort to harmonize the individual right to liberty with a reasonable protection to the person or property of the defendant, it should be said in such a charge of false imprisonment, where a defendant had probable cause to believe that the plaintiff was about to injure defendant in his person or property, even though such injury would constitute but a misdemeanor, that probable cause is a defense, provided, of course, that the detention was reasonable.  As already indicated, the rule should be different if the offense believed to be in the process of commission relates to the person or property of another.  And, of course, we may properly refer to probable cause as a defense in false imprisonment cases as constituting that justification for the arrest which may be announced by statutory enactment.  With the foregoing explanation, the authorities are harmonized, and it is made clear that probable cause is a justification for the detention of the plaintiff in the instant cause.  [Emphasis added.]

[27]  This privilege is limited to strike a “delicate balance” “between the individual’s right to liberty and the property owner’s right to protect his property”, and is lost if the merchant detains the plaintiff either for an unreasonable time or in an unreasonable manner: Cervantez v. J.C.  Penney Co., 24 Cal.3d 579, 590, 595 P.2d 975, 981, 156 Cal.Rptr.  198, 204 (1979).

[28]  Most states have enacted statutory versions of the merchant’s privilege to detain, and the contemporary cases are often based on statute rather than on the common law.  The privilege is normally triggered only if the merchant has probable cause to believe a theft has occurred or is being attempted and is usually limited both in duration and in scope.  The merchant may only detain the suspect for a brief or reasonable period of time and may not use improper or unnecessary force or exact a punishment.  For a discussion, see for example, Wal-Mart Stores, Inc.  v. Bathe, 715 N.E.2d 954 (Ind.Ct.App.  1999).

The Canadian Position

[29]  At the outset, Ontario adopted the English position, and was followed by other Canadian provinces.

[30]  In McKenzie v. Gibson (1851), 8 U.C.Q.B.  100 (Q.B.), the court held, at paras.  101-102:

We take the law respecting the right of a private person to make an arrest in such cases, to be at this day ...  that when a private person ...  take upon himself to arrest another without a warrant for a supposed offence, he must be prepared to prove, and therefore must in his plea affirm, that a felony has been committed, for in that respect he acts at his own peril.

That point in his defence must be clear; mere suspicion that there has been a felony committed by some one, will not do; though if he is prepared to show that there really has been a felony committed by some one, then he may justify arresting a particular person, upon reasonable grounds of suspicion that he was the offender; and mistake on that point, when he acts sincerely upon strong grounds of suspicion, will not be fatal to his defence.  [Emphasis added]

[31]  The insufficiency of suspicion alone was reiterated in Williams v. Laing (1923), 55 O.L.R.  26 (Ont.  C.A.), where Hodgins, J.A.  commented, at para.  10:

The law is quite clear that in order to succeed in establishing this defence the appellants must prove first that the crime they suspected had actually been committed, not necessarily by the person detained, but by some one, and that they had reasonable ground for suspecting the person detained.

[32]  This view, however, was not universal.  In Karogiannis v. Poulus, 1976 CanLII 1110 (BC SC), [1976] 6 W.W.R.  197, 72 D.L.R.  (3d) 253 (B.C.  S.C.), the court seemed to depart from this principle.  It pointed to Wiltshire v. Barrett, [1966] 1 Q.B.  312, [1965] 2 All E.R.  271, a case followed by the Supreme Court in in Regina v. Biron (1975), 1975 CanLII 13 (SCC), 59 D.L.R.  (3d) 409 (S.C.C.), in which reasonable grounds for arrest sufficed in defence for a police officer.  The court held, at para.  11, that though this power was thus given to a police officer, “by a parity of reason” it would also apply to s.  449 (now s.  494) of the Criminal Code, R.S.C.  1985, c.  C-46, which provides for arrests made by private citizens.

[33]  Those cases, however, appear to swim against the tide.  Authorities such as Sears Canada Inc.  v. Smart (1986), 1986 CanLII 2406 (NL CA), 64 Nfld.  & P.E.I.R.  187 (Nfld.  C.A.); Hayward v. Woolworth (1979), 1979 CanLII 2643 (NL SC), 98 D.L.R.  (3d) 345 (Nfld.  S.C.); and Chopra v. T.  Eaton Co., 1999 ABQB 201 (CanLII), followed Walters, McKenzie, and Laing, in taking the view that a private citizen must establish, with a preponderance of evidence, that the detainee had committed an offence, and acting solely on reasonable and probable grounds was not adequate.

[34]  This rule was criticised in some quarters.  In Banyasz v. K-Mart Canada Ltd.  (1986), 1986 CanLII 2776 (ON SC), 33 D.L.R.  (4th) 474 (Div. Ct.), the court followed the above principles with reservations, and indicated that property owners could benefit from a privilege of temporary detention for investigation.  The court held, at para.  10:

The problem of shoplifting is a serious one for storekeepers notwithstanding that the law of tort favours the interest in individual freedom over that of protection of property.  While there may be a developing privilege of temporary detention for investigation in favour of a property owner: see Prosser, Handbook of the Law of Torts (4th ed., 1971), p.  121, this is not a case where such a privilege should prevail.  The continued detention after the cashier admitted her mistake negatives any consideration of such a privilege in this case.

[35]  In Newhook v. K-Mart Canada Ltd., 1993 CarswellNfld 51 (Nfld.  S.C.), the court followed Sears Canada as binding authority but noted the comments made in para.  10 of Banyasz and indicated the practical need to protect owners where their acts were reasonable, at para.  90:

It may be said that this passage again reflects a concern similar to that in Banerjee as to the practical need to provide some protection to store owners which does not at the same time expose them to civil penalty where their acts are reasonable.  As to this, however, again the decision of the Court of Appeal in Sears Canada, in the absence of any other intervening overriding authority, binds this Court.  As I read that case, it reaffirms clearly the requirement to establish proof of the commission of the elements of a criminal offence in order to meet the first requirement for justification.

[36]  In the same vein, Briggs v. Laviolette, 1994 CarswellBC 1116 (B.C.  S.C.), following Sears Canada, noted the existence of recommendations for Criminal Code legislative reform that would allow for arrests based upon a reasonable belief that an offence was committed, at paras.  17-18:

I note that such rethinking will be much simplified if the recommendations of the Law Reform Commission of Canada in its July 1986 Report on Arrest, pp.  25-27, make their way into legislation.  These recommendations would apply the reasonable grounds criteria to both the identity of the person arrested and the commission of the criminal offence, thus affording, at least in this respect, broader authority for the private arrester than the common law.

The defendant represented himself and there was no argument of the legal issues before me.  I am thus not going to attempt to make a ruling on whether there remains a residual common law legal authority to make a private arrest which may be invoked in a civil action.  I favour and will apply the approach taken by the Newfoundland Court of Appeal in Sears Canada Inc.  v. Smart op.  cit.  in equating the effect of the Criminal Code ss.  494 and 25 to the common law on the need to prove only that there were reasonable grounds for believing that the plaintiff committed the indictable offence, once the commission of the offence by someone has been proven.

The Kovacs Decision

[37]  The most recent Ontario decision is that of Kovacs v. Ontario Jockey Club (1995), 1995 CanLII 7397 (ON SC), 126 D.L.R.  (4th) 576 (Ont.  Gen.  Div.).  After a review of both the Canadian and US jurisprudence, Cummings J.  felt that the case law clearly pointed to the position that to succeed in a defence to false imprisonment of private citizen arrest the defendants must prove first that the crime they suspected was committed – either by the person suspected or someone else – and that they had reasonable ground for suspecting the person detained.  The court also noted, at paras.  69-73, the apparent disparity between the provisions of the Criminal Code - which required the detainee to be the person committing the offence - and the common law, which permitted a mistake in identifying the perpetrator and justified an arrest of someone innocent of the suspected offence so long as it could be shown that someone had committed the offence.  Cummings J., at para.  77,  took the view that both defences ran concurrent to each other:

I conclude that the common law rule has not been abrogated by the Code: see Hayward, supra.  There exists a residual common law defence in situations where someone other than the Plaintiff has committed the crime.  I make this conclusion in obiter, because the defence in the case before me has raised insufficient evidence to show that someone else did commit a crime.

[38]  Cummings J.  expressed sympathy for the plight of store owners when faced with the threat of potential shoplifters.  He felt, however, that there had been no further development in Canadian law that permitted the creation of a US-style shopkeeper’s privilege.  Cummings J.  concluded that, in the absence of a clear common law or statutory exception, the privilege was inapplicable and store personnel should have “no higher rights” than those conferred on a private citizen.  He concluded his review of the law at paras.  104-5, in the following way:

Commendable as the exception may be, I find that it has yet to find any application in Canada.  In the absence of clear language in the Criminal Code or established precedent at common law, I decline to apply such a privilege.  Although the privilege first arose in a judicial decision in the United States, it has now been codified in many jurisdictions.  Later decisions revolve around statutory construction.  It thus appears that this privilege is more of a statutory one in the United States than one of common law.  In Canada, there is obviously no such codification.

I also take notice of the advent of the Canadian Charter of Rights and Freedoms, Part I of the Constitution Act, 1982, being Schedule B of the Canada Act 1982 (U.K.), 1982, c.  11, and the continuing expansion of human rights legislation.  Individual freedom is being given increasing emphasis and importance in Canada.  I find that the wording of s.  494(1) of the Criminal Code, and the narrow construction of the exception warranted by the case law and general interpretation principles, combine to demonstrate that no shopkeepers' privilege exists at common law in Canada.

Should the Shopkeeper’s Privilege Exist in Canada?

[39]  Whilst I agree with much of Cumming J.’s analysis and historical observations, I find myself coming to a very different conclusion with respect to the existence of the shopkeeper’s privilege in Canadian law.  In my view, there is a strong need for Canadian shopkeepers to be protected by a limited right to detain those that they have reasonable and probable grounds to believe are or have stolen their merchandise.  I come to this conclusion for the following reasons.

[40]  First, whilst no one could dispute that the Charter of Rights and Freedoms provides a bulwark of individual freedom against the actions of the state, it should not be used as a mechanism for depriving other private citizens of their right to be protected from economic loss or injury.  By way of comparison, I would note that the United States Bill of Rights, created a century earlier than our own and no less a bastion of individual liberties, is able to accommodate the privilege in both common law and statutory forms.

[41]  Secondly, the world has moved on since Hale’s Plea of the Crown and Walters.  The principle that “without a felony, there could be no suspicion” seems unsuited to an era where most shops have installed theft-prevention apparatus such as electronic tags that trigger doorway sensors.  It seems unreasonable that a shopkeeper acting in good faith is powerless to stop and investigate a customer who has set off a security alarm without the risk of being sued for false imprisonment if no theft occurred.

[42]  Thirdly, broad tort principles recognise mistake as a defence in intentional torts.  For example, a person causing harm to another is able to rely upon self-defence if sued for the tort of assault and battery.  They will be successful if they demonstrate that they had a reasonable but mistaken belief that there was a threat to their safety.  Why then, is a property owner precluded from investigating a possible wrongdoer for the limited purpose of ascertaining whether a theft occurred when their belief that a theft took place, though reasonable and honest, is mistaken?  Though self-defence operates to balance harms to the person, as opposed to property, when the harm to a possible shoplifter is de minimis, the argument for the same type of defence is overwhelming.

[43]  Fourthly, there is a distinction between expanding a citizen’s right of arrest and providing a narrow power to detain a potential shoplifter with strict conditions attached.  Recognition of the privilege would not give shopkeepers a “higher right” to arrest, but only a very limited right to detain in order to investigate the facts.  This will be discussed in more detail later on in these reasons.

[44]  Finally, there has been significant change in recent years indicating a recognition of property rights’ importance in citizen’s arrests.  Parliament’s recent legislative amendment of s.  494(2) of the Criminal Code broadening the powers of a property owner to detain possible shoplifters even after an offence was committed signals an acknowledgement of the need to safeguard an owner’s right to protect their property in today’s commercial reality.  Likewise, a broadening of these rights is supported by the recommendations of the Law Reform Commission of Canada (in the Law Reform Commission of Canada - 1986 Report on Arrest), where it noted that a reasonable and honest mistake of fact should not deprive a citizen of the Criminal Code defence for making an arrest.

The Parameters of the Privilege

[45]  Turning to the limits of the privilege, I find that the following conditions must be met before a defendant can successfully mount the defence of the shopkeeper’s privilege:

1.  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.

2.  The sole purpose of the detention must be to investigate whether any item is being stolen or has been stolen from the store.

3.  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.

4.  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.

5.  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.

[46]  With these parameters in place, the interests of the store owner and the person suspected of theft are sufficiently balanced to protect both their rights.  In most cases, a customer will volunteer to assist store personnel to ensure that their query is dealt with in short order.  In such cases, the detention should be as short as possible and limited to what is reasonably required to discover if anything is amiss.  Moreover, I emphasise the need for all store security employees to treat store visitors with respect.  Any allegations of unnecessary force, threats or bullying will extinguish the defence and expose the store to liability for false imprisonment.

Accordingly, within Ontario, it appears that a 'privilege' does provide conditional protection for store owners who may need to take reasonable action to limit shoplifting losses.  This would appear within the public interest as the price of goods and wares is directly affected by shoplifting losses and limiting efforts are of public benefit.  Of course, as articled at paragraph 45 in the Mann case, the privilege is subjected to parameters.

Summary Comment

The tort of false imprisonment is often confused with false arrest; however, false imprisonment may happen without an arrest.  For example, where a line up of bouncers in a bar may block the passage of a patron who is attempting to leave the bar such a detention which is contrary to the will of the patron may constitute a false imprisonment.  The elements of false imprisonment are three fold; (1) The person was totally deprived of liberty, (2) The deprivation of liberty was without consent, and (3) The deprivation of liberty was caused by the defendant.  It is notable that physical force or restraint is unnecessary.  Another key point of interest is the 'privilege' or exception for store owners which provides a defence against false imprisonment when such occurred reasonably in accordance to the parameters prescribed within the common law following analysis of concerns and principles applicable to the Criminal Code and public interest. 

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