Shoppers Not Suspects 

November 13, 2019

Shoplifting problem?  What shoplifting problem?  Retailers need to stop illegal searches of their customers.  The rights infringement is unjustified and disproportionate to the inflated cri de coeur about low net profit margins of the retail industry.  Boo-hoo.  Poor Walmart.  Poor Costco.  

 But just because you have the right to be left alone by Walmart and Costco bag-checkers doesn’t mean you always should.  Consenting to a search of your belongings is something that shops can seek and you can provide.  If you are concerned about being delayed by store agents by standing up for your rights, then go ahead and comply with their request to search your belongings and compare the items with your receipt.  My beef is with those responsible for the searching, and the laws that apply.   

 A presumption of search compliance meets with the caricature of Canadians in popular culture, particularly US jokes about us as hyper-apologetic and meek.  But the matter of bag checking is not unique to Canada.  There is a growing global presumption swallowed whole by the media that shoplifting is an urgent problem justifying urgent searches of shoppers to prevent an alarming level of retail theft.  If anyone is being naive and compliant about shoplifting, it’s the broadcasters and publishers that run story after story on the subject as if the poor retailers and the poor security industry are helpless victims of wrongdoing.  In fact, the only people whose civil liberties are being compromised are the shoppers themselves.  We’ve gone from the customer is always right to the customer is always a suspect; guilty until proven innocent. 

 That the Canadian Civil Liberties Association is being called upon by journalists to comment on these stories is telling.  Shoppers are beginning to fight back by complaining to journalists, provincial human rights commissions and the courts.  Its the beginning of the end, one can hope, of the retailer practice of searching people and their belongings while exiting a store.   

 Bag checks is a retailer practice that could only be driven by shrewd bean counters and the private security industry, armed with an army of lawyers.  Plenty of ink has been spilled by so-called researchers and journalists about shoplifting.  To read the so-called studies and reports, one would think shoplifting to be a pandemic.  There is some recognition of psychological and  sociological implications, but zero skepticism about the so-called facts.   

 To obtain information about the prevalence of shoplifting, however, one necessarily has to accept the numbers rendered by unreliable sources:  the retailers and security industry.  Its in the interests of the latter to alarm everyone about the necessity of more security services, and the interests of the former to mitigate their losses.  The other security industry — that of equity and debt securities or financial instruments — is far more well known for being economical with the truth.  But Ive no doubt that the alleged global shoplifting pandemic will also be exposed as overstated and hyped by the self-interested.   

 Let’s be clear about your rights, as much as one can ever be clear about the law.  The ‘shopkeepers privilege,’ as it’s known in the case law, came about from shoplifting cases, but arguably it’s only triggered when a crime is witnessed.  In other words, the shopkeepers privilege is exercised after a theft is witnessed, not in anticipation of an imagined crime.  That privilege says that shopkeepers can detain someone until the police arrive.  After witnessing a theft, a shopkeeper can invite the customer to search the bag together with the shopkeeper.  But the shopkeeper has no right to search without consent. 

 So what if the shopkeeper asks to search the bag without having witnessed a crime?  I say forget it.  If police cannot stop and search someone, without reasonable and probable cause, then why would a shopkeeper be allowed to engage in a version of carding?  One answer would be that the customer took out a membership at Costco, and one of the terms of that membership includes this clause:  Costco reserves the right to inspect any container, backpack, briefcase, bag or other package when our members and their guests enter or leave our warehouses. Our members and their guests consent to such inspections when they enter our warehouses.”  Walmart started the same practice of late, inadequately forecasting to customers that an illegal search was coming (albeit they wouldnt put it that way), by way of notices near the self-checkouts.  But some of the Walmart searches are simply at the exits, not targeting the self-checkouts. 

 Would that Costco contract or Walmart notice hold up in court every time?  I doubt it.  But what’s a customer to do, when standing in a line of people trying to leave the store, not wanting to be the one mischievous wolf in a herd of sheep opening their bags?  Are you willing to kill a morning somewhere in the bowels of a Costco, awaiting either the police (who should not be called, because there has been no crime witnessed) or a menacing manager who threatens to revoke your Costco membership?  And how thrilled is your shopping companion with your act of retail martyrdom? 

 No doubt an economist would say that the market will solve this issue, when customers vote with their feet, against the retailer practice of presuming their customers to be guilty of theft, until proven innocent.  Maybe.  Better that the industry itself get ahead on this issue, by changing direction, by respecting peoples’ rights – to privacy, liberty, and the freedom to be left alone.  Roll back the prices all you want Walmart but stop rolling back peoples rights.  Nobody expects retailers to give out goods like a charity.  Inventory shrinkage is part of the cost of doing your very profitable business.  Rights shrinkage is not.  Stop snooping in our shopping bags, as if we were suspects, when in fact we’re not. 

by Michael Bryant, Executive Director