Carswell is picketing on a sidewalk outside of a shopping mall operated by Harrison. The sidewalk is private and owned by the shopping mall. She started picketing on a city sidewalk, but it was too far from the store so she moved to the mall property. Harrison asked her to leave, but she came back several times. Harrison charged Carswell under The Petty Trespasses Act of Manitoba for trespass despite the fact that the strike itself was a legal action.
- Does the court have a role in balancing public rights and private property rights?
- Does a shopping centre owner have sufficient possession of a private sidewalk in the centre so as to invoke a trespass statute against an employee peacefully picketing her employer who is a tenant of the owner?
- Is the mall truly private property after it has been opened to all members of the public?
Appeal allowed, original conviction reinstated.
The majority states that in general the common law always protects private property unless there is an applying statute that takes away one's property rights. There is no such statute in this case, and thus the case must be found on the common law bill of rights, which states that private property is the most important thing to be protected at common law.
In the dissent Laskin CJ questions the underlying issues, and says that the common law must be updated to take new phenomena into consideration. There were no such things as shopping centres like the ones today when the common law developed. These malls are essentially public places – the owners invite all members of the public virtually without restriction. Therefore there must be a significant grievance to expel someone from the property, which he does not think happens here.
The common law protects private property rights unconditionally unless there is an overriding statute.