What is the effect of a shopping centre on privacy expectations?

British Columbia, Canada


The following excerpt is from Silber v. B.C.T.V. Broadcasting System Ltd., 1985 CanLII 316 (BC SC):

In Harrison v. Carswell, 1975 CanLII 160 (SCC), [1976] 2 S.C.R. 200, [1975] 6 W.W.R. 673, 75 C.L.L.C. 14,286, 25 C.C.C. (2d) 186, 62 D.L.R. (3d) 68, 5 N.R. 523, a trespass case concerning picketing in the common areas of a shopping centre, Laskin C.J.C., in dissenting reasons, made some observations about the character of such areas which, I believe, are pertinent to the claim for violation of privacy here (albeit, in view of the result, not to the claim in trespass). He stated (at pp. 207-208): The considerations which underlie the protection of private residences cannot apply to the same degree to a shopping centre in respect of its parking areas, roads and sidewalks. Those amenities are closer in character to public roads and sidewalks than to a private dwelling. All that can be urged from a theoretical point of view to assimilate them to private dwellings is to urge that if property is privately owned, no matter the use to which it is put, trespass is as appropriate in the one case as in the other and it does not matter that possession, the invasion of which is basic to trespass, is recognizable in the one case but not in the other. There is here, on this assimilation, a legal injury albeit no actual injury. This is a use of theory which does not square with economic or social fact under the circumstances of the present case. In citing this passage, the only point I wish to make is that the character of the property where the act or conduct complained of took place is highly relevant to the question of what constitutes a reasonable expectation of privacy.

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