Criminal Code/Shoplifting
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Criminal Code - Shoplifting
Shoplifting is Theft
What is shoplifting?
Shoplifting is a common or street term which usually refers to the offence of theft under the value of $5,000. It means taking something out of a store without paying for it.
My daughter was caught taking some chocolate bars without paying. The store owner said he won't lay charges but wants to meet with us to talk. What charges could she have faced?
Your daughter could have been charged with the crime of theft. The Canadian Criminal Code defines theft as taking the property of someone else with the intent to take it away temporarily or permanently from its rightful owner.
She's just a kid and her friends dared her to see if she could get away with it. Is that really theft?
Yes, it really is theft. It is theft if a person takes property belonging to another with an intention of depriving them of it. It doesn't matter if the property is worth very little or if it was just a dare.
Theft Under $5,000
Shouldn't there be a difference between stealing a chocolate bar worth 75 cents and stealing $50,000 worth of jewelry from a store?
The Canadian Criminal Code does make a distinction between these kinds of theft, depending on the value of the items stolen. The offences are called theft under $5,000 and theft over $5,000.
How does the law distinguish between theft under $5,000 and theft over $5,000?
The difference is the way in which the Crown Prosecutor handles the charge. In the case of theft under $5000, the Crown Prosecutor can decide to handle the charge as either a Summary Offence or as an Indictable Offence. Of the two, indictable offences are the more serious and the court procedures are more complicated. If a person is convicted of an indictable offence, the penalties can be more severe.
What are the penalties if my daughter were convicted of theft as a summary offence?
A person convicted of theft under $5,000 as a summary offence can be fined up to $2,000 or imprisoned for up to six months or both. These are maximum penalties, however, and the penalties for a first offender would likely be much less severe. As well, other options are available to your daughter as a Young Offender.
What if a person is convicted of theft under $5,000 as an indictable offence?
A person convicted of theft under $5,000 as an indictable offence could be fined and or imprisoned for up to two years. As a matter of procedure, however, the Crown rarely proceeds with such a charge as an indictable offence, particularly if it is a first offence.
How does the prosecutor decide how to proceed?
The prosecutor looks at a number of factors including the circumstances of the crime, the age of the accused, and whether or not the accused has a previous record.
Rights of the Store Owner and the Accused
After catching my daughter shoplifting, the store owner detained her in a back room of the store and told her he was going to call the police. Did he have the right to do that?
Yes. You may have heard the term "citizen's arrest". This means that any citizen has a limited right to arrest another person if they are seen committing an indictable offence or if they believe on reasonable and probable grounds that someone is committing a crime. The most common form of citizen's arrest involves shoplifting. These are usually made by store detectives or personnel. Having detained your daughter, the store owner must call the police immediately and let them take over as soon as they arrive.
The store owner went through my daughter's backpack looking for more stolen property. Did he have the right to do that?
Probably not. The arrest of a citizen by another citizen is seen as a government function to which the Canadian Charter of Rights and Freedoms applies. Section 8 of the Charter provides that everyone has the right to be secure against unreasonable search and seizure. Even if the store owner had seen your daughter put goods into her backpack, he should probably wait until the police arrive. The police have a wider discretion as to whether they can search the backpack.
The store owner asked my daughter a lot of questions. Did he have the right to do that?
The law is not really clear on this point. If the store owner had simply stopped your daughter in an aisle and asked her if she had taken anything, that might be appropriate. Your daughter has the right not to answer any questions even at this point. However, if the store owner had asked her to come to an office as she was suspected of taking goods, he might then be under an obligation to tell her what her rights are before he asks her any questions.
The store owner has the right to ask questions; although, there might be some issue as to the procedure to be followed depending on the circumstances of the questioning. In all situations, your daughter has the right not to answer any questions.
Statements Made by the Accused
My daughter was afraid not to answer the questions, so she did say some things to the store owner. Can these statements be used against her?
The Youth Criminal Justice Act has special protections for youths in this kind of situation. Special rules apply to statements made to persons in authority and these statements may not be used in court against her unless they meet certain standards.
Who is a person in authority?
A person in authority means someone that the youth thinks may have some influence on the court proceedings against her. It could include people like a police officer, the crown prosecutor, the victim of the crime, employers, principals, and teachers. It would probably include the store owner in a shoplifting situation.
What are the rules about statements made to persons in authority?
Young people giving a statement to a person in authority
- must make the statement voluntarily, that is without being promised any benefit if they make the statement and without fear of the consequences if they don't make a statement;
- must be told by the person in authority that they don't have to make a statement;
- must be told that any statement they do make may be used as evidence in court;
- must be told that they may speak to a lawyer, parent or other adult before saying anything;
- must be told that the adult they contact must be present when they make their statement unless they choose otherwise;
- must be given a reasonable chance to contact a lawyer, parent or other adult and have that person present when they make a statement.
What happens if all these rules are not followed when my daughter made a statement?
At a Youth Court hearing, her lawyer will ask questions about any statement she made. The lawyer may try to show that the rules were not followed, so that any statement she made should not be allowed to be used in court as evidence against her. The Youth Court judge will make a decision about whether or not her statement can be used.
What if my daughter doesn't have a lawyer in court with her?
If your daughter goes to court without a lawyer and she wants to get one, the judge will give her time to contact one and will set another date for her to come back to court with her lawyer. Of course, you as her parent should be with her in court as well.
What if we don't want to engage a lawyer to handle this?
In that case, the Youth Court judge will ask questions about how your daughter's statement was given and then make a decision about whether or not to allow her statement to be used as evidence.
Do these rules always apply to statements young people make?
Sometimes there is an exception, such as when a young person says something spontaneously before the person in authority has a reasonable chance to follow the special rules. Therefore, it is important for young people to know and remember if they get into trouble with the law, that they have the right to remain silent, just as adults do.
If the police had been called, would my daughter have had to talk to them?
The same rules apply. The police are regarded as persons in authority. As well, there are certain rules the police must follow when dealing with young people.
What additional rules do the police have to follow?
If the police detain a young person, they must contact the parents or guardian and tell them why. Then, as with adults, if a young person is arrested, she must be told why she is being arrested and that she has the right to speak to a lawyer immediately. If she asks to speak to a lawyer, the police must stop questioning her until they have tried to contact a lawyer. Even after she speaks to the lawyer, she has the right to remain silent.
Do parents have to be notified in situations like this?
The police must contact parents or guardians if they arrest or detain a young person. The parents must be told the charge.
If there is a court hearing, the Youth Court judge will certainly want to know if the parents are present. If they are not, the judge may set the hearing over to another date so that the parents can be notified and be present. Youth Court judges want to be sure that young people don't have to face complex court procedures alone. They also want families to be involved in seeking help for problems together.
This page was last updated in November, 2006.
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