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 like 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. 

The formal charge is called theft under $5000. 

Since theft under $5000 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  If the charge is ultimately withdrawn, however, an application can be made to the relevant police force to have both pictures and prints destroyed.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 or direct accountability.  By participating and successfully completing this program, the criminal charges will be withdrawn or stayed. 

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

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: 

• Previous criminal record. 
• History of diversion. 
• Value of items stolen. 
• Level of sophistication of the offence. 
• Stealing from one’s employer. 

There is no standard diversion program.  In Toronto, those who enter the program will meet with a diversion worker who will set-up some type of program.  This can include one or a combination of the following: 

• Charitable donation. 
• Community service hours. 
• Completion of a course about shoplifting. 
• Letter of apology. 
• Any other task deemed appropriate by the Crown or diversion worker. 

Although there is no requirement to enter a diversion program, most people facing similar charges will complete the program.  In most cases, an accused person must formally accept responsibility for their actions when they sign-up for the program.  If someone is factually innocent, then they will not be able to accept this responsibility.  There may be other reasons besides factual innocence, such as employment concerns, for an accused person to not want to do this.  In some cases, the Crown may be insistent on the diversion program meaning that if someone will not enter the program, the prosecution will continue.  In other cases, an accused person or their lawyer may be able to work out a more informal alternative that is satisfactory to both parties. 

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 the shoplifting incident.  This letter has no legal authority.  There have been some cases where stores have successfully sued shoplifters for losses, but they are rare. 

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. 

Trial and Sentencing 

In cases where diversion or another resolution cannot be reached, the case may proceed to trial.  Like any case, the burden is on the Crown to prove guilt beyond a reasonable doubt.  In a shoplifting case, the Crown will need to prove that the item was taken and that the accused person had the intention to deprive the store of that item.  In cases where there was a misunderstanding and an accused person was unaware they had taken the item, they will be able to present this defence to the court (in all criminal cases there is no obligation for an accused person to testify and should discuss this decision with their lawyer).  If the defence is enough to raise a reasonable doubt, they will be found not guilty of the offence. 

An accused person found guilty of shoplifting will be sentenced by the Judge.  Sentencing is a highly individualized process where a court looks at the facts surrounding the offence as well as the circumstances of the offender.  In cases involving a first-time offender, jail is an unlikely result. Custodial sentences become more likely for those who already have a criminal history.  A court will consider what factors may have led to the offence such as addiction, mental health concerns, etc., and determine an appropriate sentence.  The potential for rehabilitation is often a foremost concern. 

Use of Lawyers 

The process of attending court and accepting diversion is not overly complex and usually does not require 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 $5000 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 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 a flat rate 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.