Class 4 Flashcards
What does the right to exclude contrast with
Indigenous concept of sharing of lands.
Is shopping centres private or public property
It has elements of both
Harrison v. Carswell
Does a property owner have a right to exlucde in a shopping mall? IN this case, carswell was picketing outside a store and charged with trespassing.
Held in favour and said they had control and right to exclude.
This exists as the mall had a policy that prohibits the distribution of pamplets.
To exclude you need:
1) YOU MUST show sufficient control and possession of a common area in order to exclude on property of law.
2) To establish sufficient control you must have a form of policy where you have anticipated the manner in which you want the property used.
What was the dissent to Harswell
- You give access to the mall, you cannot take away unless unlawful behaviour.
the right to picket of an employee takes over individual private property rights.
judges are too keen to enact old precedent rather then making law based on new facts. the Peter case is different then this by alot.
Queen v. Peter
Case in a mall where picketing was being down in regards to California grapes and it was said they had the right to exclude.
Case of a shopping mall which said you can exclude a person from common area if you have sufficient control and possession of those areas. That if you invite the public, you can make them leave by withdrawing invitation. if they do not leave, they are trespassing.
Has the provincial legislation taken over for the law of picketing?
Yes the Ontario trespass to property act. it is protected but not an unlimited right to picket.
Ontario Trespass to property act what was comments about it?
It didn’t take in to account development of trends, competing social interests.
Makes no distinction between different types of property and potential for discriminatory enforcement against minorities and youth since any manager/owner of publicly used property can require any member of the public to leave at any time for any reason.
Can you defend your property?
Yes you can within reasonable limits.
Building on the defence of property, what was the Stanley case about?
Talked about a guy who shot a native who he thought was stealing. found that this was not reasonable force but still acquitted.
