(Shoplifting).

In this issue, our features look at liability in civil courts and some of the developments that have taken place there. To set the scene, Peter Bowal's article explains the differences between public (criminal and regulatory) law and private or civil (tort and contract) law. This explanation set me to considering some recent uses of private law and the questions those uses raise.

Stories have hit the air waves about a new approach by Zellers and The Bay to dealing with shoplifters. As always, store security officers call the police to deal with the accused shoplifter -- this is a clear case of the operation of the public law. If they believe it is warranted, the police as representatives of the state act on behalf of us all to charge the accused with theft. The accused has a trial -- Regina (the state) versus the accused -- and if convicted, the offender is punished on behalf of all of us. Because the whole weight of the state is ranged on behalf of society, the accused is guaranteed the right to equality before the law, right to a lawyer and so on. That is the normal pattern of the public law.

However, many people no longer feel that the public law is protecting them. Shoplifting, for example, takes an enormous bite out of merchandising profits; the criminal justice system does not, apparently, provide deterrence; finally, public law provides no redress to victims.

So Zellers and The Bay have begun to use private law to obtain redress. Whether an alleged shoplifter is charged under the criminal law, the store sends a letter to that person -- to the parents in the case of a person under 18 -- demanding slightly over $300 in damages, or the letter says, the store will sue for these damages.

According to spokesmen for Zellers and The Bay, this approach does two things. First, the $300 plus figure for damages is determined, they say, from the total cost of any shoplifted item. So, if the damages are paid, it redresses the victim. Second, they also say that so far none of the people who have paid the damages have been caught shoplifting again; thus, they argue, it is effective as a deterrent. So far so good.

However, this approach has some other effects that we may find not so favourable. First, it is important to note that the accused in this situation is only accused. There does not need, at the time of the letter, to have been any trial. Thus, one of our most basic rules of law -- that a person is assumed to be innocent until proven guilty -- may be circumvented.

Now, we might say to ourselves, the store isn't likely to try this unless they know the person really did shoplift. But imagine this scenario: You are the parent of 13 year old Johnny, who goes off with friends to the mall. When he comes home, he's very upset because one of his friends tried to shoplift some running shoes, and Johnny and his other friends all got taken to the security office and blamed for the shoplifting. Johnny tells you he was with the group, but hadn't even seen his friend drop the shoebox into his backpack. Quite likely in a normal loving family, you would discuss with Johnny the problems of choosing friends and leave the incident at that. What, then, would you do if you received a letter from the store asking you to pay damages? Would you feel obliged to pay the money in case your child was involved? Would you pay to avoid the hassle of going to court? Or, trusting in Johnny's innocence, would you wait to be sued by the store?

The second problem with this approach has to do with the degree of proof needed. If Johnny were charged with the criminal offence of theft and taken to Young Offenders Court, the judge would have to be convinced beyond a reasonable doubt that Johnny had been involved in the shoplifting. In addition, because it was a criminal offence, Johnny would be eligible for legal aid of some kind if you could not afford a lawyer. So he would have some knowledgeable assistance in dealing with the court system.

If, however, you and Johnny were sued for damages, the judge would only need to be convinced on a balance of probabilities; that is, the judge would look at the different stories about the shoplifting, and make a decision based on the one that seemed most probable. Because it is a civil suit in small claims court, you and Johnny would not be eligible for any legal aid, and so you could find yourself fighting the case with no help against experienced lawyers.

In other words, this approach by Zellers and The Bay could have two major effects: first, it could make it more possible for victims of an incident to gain redress; second, it could make it less possible for an accused person to defend him or herself - at least in cases where there is a large economic difference. It has the effect of privatizing public law, addressing a crime as a wrong between two private parties.

The notion of public law and public rights is that just as each one of us is injured when a person commits a crime, so each one of us is denied rights if an accused is denied rights. In old Europe, even acts such as murder were dealt with as private wrongs between families; your family member killed my father; therefore, I will kill your son, and so on. We've seen similar approaches where victims of sexual abuse sue the alleged abusers for damages long after the event rather than hoping the state will prosecute. Again a possible crime against society is being addressed as a private wrong between two people. This is the logic of privatizing the criminal law; is it something you could support?