Please note the disclaimer that nothing in this site constitutes legal advice. If you would like to have a consultation, please contact me.
Shoplifting
is probably the most common instance where an individual is charged with the
offence of theft under $5,000.
A
shoplifting arrest could happen in a variety of ways. For instance, a person might go into a store
intending to steal any number of items.
In another case, the individual might happen to take a fancy to one or
more items only after entering the store.
Frequently, the person will have enough money to pay for one or more
items, but they might not have enough money.
The many variations of these occurrences include circumstances where the
individual will make other purchases, but steal something at the same
time. Items may be hidden in a purse,
pocket, underneath other clothing or in a cart.
Sometimes, people openly carry the item out of the store.
Of
course, not everyone who is stopped for shoplifting is guilty of theft. Sometimes the store employee who stops a
customer finds they has taken nothing at all out of the store, or has taken
something and simply forgotten to pay for it.
When the customer says he forgot, that explanation is usually not
accepted and the individual will be charged with theft.
Elements: Under s.
322 of the Criminal Code, one way for
a person to commit theft is when they
...fraudulently
and without colour of right takes, or fraudulently and without colour of right
converts to his use or to the use of another person, anything, whether animate
or inanimate, with intent to deprive, temporarily or absolutely, the owner of
it, or a person who has a special property or interest in it, of the thing or
of his property or interest in it.
The
theft is complete when “...with intent to steal anything, he moves it or causes
it to move or to be moved, or begins to cause it to become movable.”
The
section also provides that a theft still occurs even when it is effected
without secrecy or attempt at concealment.
The
key element of the offence is the intent to unlawfully deprive the owner of the
property. Since purchases in retail
stores are made on a self-serve basis, picking up an item from a shelf cannot
be the basis for the crime. In this
context, it is the intention not to pay for the item that constitutes the
mental element of the crime. Thus,
whether the crime is completed when the item is taken from the shelf or when it
leaves the store doesn't matter. Only
when the item leaves the store will the person be stopped.
Sometimes,
people legitimately simply forget to pay for something. In that case, it is not theft.
Typical Shoplifting Arrest Situations: Large
retail outlets have a policy of prosecuting all shoplifting incidents. Smaller establishments do not and rarely, do
those establishments report shoplifting incidents to police. Larger stores have specially trained
personally watching customers. When they
suspect someone, they will follow that person outside the store, usually ask
the individual if they have anything not paid for and when the item is
produced, the store employee will ask the individual to return to the
store. In most cases, this is a
legitimate arrest, but the employee must call the police right away. Usually, the employee fills out a report on a
pre-printed form. The police will come
to the store and if the person does not have any current or serious prior
involvement with the law, they will receive a simple summons to come to
court. At this point, the store doesn't
want that person back, and the employee will issue a trespass notice. Coming back to that store later to shop or
browse may result in a ticket for trespassing.
Coming back to steal may be considered a break and enter.
The
store employee or the police will list the number of alleged stolen items and
their value on the report. Sometimes,
apparently stolen items from other stores will turn up and the police will take
these and contact those stores. The
store and the police will want to know if the individual is able to pay for
what is allegedly stolen. If the person
does not have enough cash, cheque or a credit card to pay for these items, it
is usually good evidence of an intention to steal. On the other hand, more than enough money to
pay for the property doesn't necessarily negative the assumption. In the report, the store employee will
usually write that when the item was placed in the pocket or in the cart, the
individual "looked around" before doing so. As this is commonly recorded, it may or may
not have significance in any particular case.
Very often, people will offer to pay for the suspected item. The significance of this probably doesn't
have any weight either way. Of course,
the offer will rarely, if ever, be accepted.
Many
individuals regularly shoplift and do so with relative sophistication and
without ever getting caught. However,
others might only end up being caught in this situation once or twice. Unlike the professional thief, the impulse to
steal, might only arise after being in the store. In some circumstances, and age is not a
factor, the root cause of the conduct stems from psychological problems, such
as depression. While the individual's
personal difficulties are a valid consideration for sentencing, the motivation
for committing the crime--often referred to as ‘a cry for help'--does not
change its criminality.
Commonly,
people who allegedly shoplift, either suffer from long-term psychological
problems or are in a transitional period in their lives. For instance, a person who is suffering from
or has a family member suffering from health problems, or financial problems,
or who has just lost a close relative or friend or passed the anniversary date
of such an event, may be so upset by those experiences that they find
themselves being accused of shoplifting.
How does this happen? Well, that
is always the question. When they left
the store with the item in their pocket, did personal problems result in
forgetting to pay for it or was the item stolen because the offender didn't
care any more? One can see the
distinction between the criminal and the innocent conduct.
Depending
on who you talk to, anywhere from 90% to 99.9% caught in this situation, have
actually stolen something. The risk of
being caught is not worth it in any event.
Shoppers should not only guard against any momentary impulse which might
arise while in a retail outlet, but be careful not to do anything that may be
regarded as suspicious. If you intend to
buy an item, don't put it in your pocket.
Take the trouble to find a cart or basket. Whatever you do, make sure you never walk out
of a store with anything you don't have a receipt for.
Convictions and Penalties: First-time
offenders will rarely be jailed. In fact
most will be eligible for alternative
measures, or perhaps, a form of discharge, a fine or probation. Repeat offenders often do not go to jail
either. However, persons with criminal
records for these and other offences, will not be so lucky.
Civil Liability: Larger
retail outlets or others may send out letters demanding compensation from
people caught in their stores for shoplifting.
Click here to go to a page on civil liability.
Other like occurrences: Another
offence often committed in retail stores should be mentioned, namely false
pretences under s. 362. Like theft, it
is a dual procedure offence, when the value is under $5,000, it is punishable
up to six months by summary conviction, or two years by indictment. When the value is over $5,000, it is
punishable by up to 10 years. In essence
a false pretence is a form of fraud whereby a person makes a false
representation of fact, past or present.
An example of this would occur when a person switches price tags on two
items and pays for the one of higher value using the wrong tag. False pretences may also be committed when purchasing
store items by presenting a cheque that the buyer knows will not be
honoured. Credit or anything capable of
being stolen, may be obtained by a false pretence. The distinction between theft and false
pretence is that with a theft the owner does not intend to part with possession
and title does not pass. With a false
pretence the owner does intend to part with the property.
When
a charge arises because of a switched tag, the prosecutor will have to prove
the defendant switched the tags or knew the item purchased had the wrong
tag. Usually, a store employee will
testify they saw the defendant make the exchange. In the case of a bad cheque, the police will
find out whether the account was active and if it had sufficient funds. Under s. 362 of the Criminal Code, the goods obtained by a worthless cheque:
...shall
be presumed to have been obtained by a false pretence, unless the court is
satisfied by evidence that when the accused issued the cheque he believed on
reasonable grounds that it would be honoured if presented for payment within a
reasonable time after it was issued.
As
a practical matter, this will be a difficult burden for a person to meet. However, it is not an impossible one. For instance, the accused might prove that
they reasonably expected the funds would be in the account on the day the
cheque would be presented. The account
history would be of assistance as well as proof that funds were available
within a reasonable time after presentment.
Generally
however, the offence under s. 362 has become less prevalent as personal cheques
become a less acceptable form of payment.
As for switched priced tags, with the advent of scanners and bar codes,
technology makes this kind of fraud impossible for many products.
Minor
instances of any of these offences, may be diverted and not result in a criminal
conviction. If that is not offered or
even if it is you are wise to consult with a criminal defence lawyer before going
ahead.
Please note the disclaimer that nothing in this site constitutes legal advice. If you would like to have a consultation, please contact me.