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A Shoplifting Primer

With the approaching holiday season I thought this would be a good chance to discuss shoplifting.  For many, a shoplifting charge will their one and only interaction with the criminal justice system, which will be undoubtedly quite scary and stressful to deal with.

The Laying of the Charge

Upon being caught shoplifting by store staff, an individual will likely be detained until the police can attend.  At the point of detention this person has rights similar to those being detailed by a police officer, such as the right to contact counsel.

Absent a criminal record, outstanding charge, or primary ground concerns (meaning there is a concern that someone won’t appear in court, such as when they are not ordinarily resident or have no fixed address), someone charged with shoplifting will be provided with a summons to appear in court on a specific day and time.  They will also be given a date to appear for photos and fingerprints.  They may also be provided with a trespass notice explaining that they are not to enter store or possibly mall property for a given period of time.

The formal charge is called theft under $5000.

Since theft under is a hybrid offence, and therefore deemed indictable at the time of the charge, there is nothing that can be done about the requirement to appear for pictures and prints.  If the charge is ultimately withdrawn, however, an application can be made to the relevant police force to have both pictures and prints destroyed.

Similarly, the issuance of a trespass notice is generally within the purview of the store.

Court and Diversion

Most people charged with shoplifting are offered entry into a program commonly known as diversion (it may be formally called different things at different courthouses, such as direct accountability).  By participating and successfully completing this program the criminal charges will ultimately be withdrawn or stayed.

Those charged with shoplifting will find out if they are eligible for diversion at their first court date.

There is no requirement to enter a diversion program, although most people facing similar charges will complete the program.  In most cases the diversion worker will require an acceptance of responsibility which some people are not prepared to accept.  By refusing entry into the program, however, the Crown may decide to proceed with the case through the normal course of prosecution.

Not everyone is offered diversion.  The decision to offer the program lies solely with the Crown Attorney.  The following factors may result in the program not being offered:

  • Criminal record.
  • Past history of diversion.
  • High value of items stolen.
  • Stealing from one’s employer.

The last factory, stealing from one’s employer, is not technically shoplifting but I thought appropriate to add to the list.  Such acts are considered breaches of trust and are generally taken quite seriously by the Crown and courts.

Civil Recovery

Retailers will often send those accused of shoplifting letters “demanding” that they pay a certain amount of money ($550 is a common amount) to defray the costs the store incurs both by the items stolen and investigating shoplifting.  This letter has no legal authority.  There have been some cases where stores have successfully sued shoplifters for losses, but they are rare.  Many of my criminal law colleagues and I are very critical of this practice and take great issue with retailers who decide to engage in it.

The only letter that must be addressed is a formal legal document called a statement of claim.

It has become common for retailers to also attempt civil recovery from parents of young people accused of shoplifting as well as those accused but not charged.

Use of Lawyers

The process of attending court and accepting diversion is something people can do themselves.  It is not complicated and any lawyer hired will not be engaging in overly difficult legal work.  What a lawyer provides is some piece of mind and an assurance that, if there are problems, someone with experience is in your corner.

Another option I provide for people charged with theft under arising from a shoplifting allegation is for a paid, one-hour consultation.  At this meeting I will review your case and thoroughly explain all steps in the process, including court, fingerprints and pictures, diversion, civil recovery, etc., and answer all of your questions.  I can generally determine if one should be eligible for diversion or not (although I cannot make any promises) within this consultation, and if I am unsure highlight the various “red flags” that may be a cause of concern.  I charge $250 plus tax for this service.

Alternatively, if someone would like to have me on board to deal with the entire case, I offer a few reasonably-priced options which recognize that these cases are not overly complex and can often be easily dealt with.

This blog post was written by Toronto Criminal Lawyer Adam Goodman. Adam can be reached at 416-477-6793 or by email at adam@aglaw.ca.