Harrison v. Carswell

"Harrison v. Carswell" (1975), [1976] 2 S.C.R. 200 is a famous pre-Charter decision of the Supreme Court of Canada where the Court denied the right to protest as a freedom of expression.

Opinion of the Court

The Court held that there was no right of a store employee to protest in a shopping centre when it was against the wishes of the centre. The centre was held to be sufficiently under the control of the owner and did not constitute a public place, thus the owner had the right to protect the private property under trespass.

Dissent

In one of his most famous dissents, Chief Justice Laskin held that the centre was a public place as the public had free access to the place. :"If it was necessary to categorise the legal situation which, in my view, arises upon the opening of a shopping centre, with public areas of the kind I have mentioned (at least where the opening is not accompanied by an announced limitation on the classes of public entrants), I would say that the members of the public are privileged visitors whose privilege is revocable only upon misbehaviour (and I need not spell out here what this embraces) or by reason of unlawful activity. Such a view reconciles both the interests of the shopping centre owner and of members of the public, doing violence to neither and recognising the mutual or reciprocal commercial interests of shopping centre owner, business tenants and members of the public upon which the shopping centre is based."

Aftermath

In Post-Charter Canada the question remains unresolved. The Court's multiple reasons in "Committee for the Commonwealth of Canada v. Canada" [1991] 1 SCR 139 leave things particularly ambiguous. Shortly after the decision in Carswell the Canadian government revised its legislation on picketing to allow future mall employees to picket on mall property. The legislation recognizes malls as public spaces where arbitrary withdrawal is no longer lawful on behalf of mall owners.