Shoplifting (Theft Under)
Kenneth W. Golish, Criminal Defence

Shoplifting (Theft Under)


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.

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