What Happens if My Friend Shoplifts?

Camilla’s high school is a ten-minute walk away from a mall so her and her friends usually go there during their lunch period.  In their most recent visit to the mall, Camilla and her friends go into a make up store because they want to buy the newest shade of nail polish.  While most of them grab a bottle and head to the checkout to pay, one of her friends, Natalie, says, “I’m just going to keep looking around.  I forgot my debit card so I’ll probably come back this weekend.”

Camilla is first in line at the checkout so when she is done paying for her nail polish, she goes to look for Natalie.  From a distance Camilla notices that Natalie is still in the aisle with the nail polish.  She continues to walk toward her and notices Natalie grab a bottle of the  nail polish off the shelf, throw it in her purse and then head in the opposite direction.

Camilla is shocked and doesn’t know what to do; she asks Natalie what she is doing. Natalie replies with a smile and tells Camilla “I’ll grab one for you too, act natural“. Camilla doesn’t want her to friend to be mad at her so she does as told.  One by one her friends finish cashing out and join her, then they all leave the store and head back to school since their lunch period is almost over.

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 WHAT WILL HAPPEN IF NATALIE IS CAUGHT?

If Natalie is caught shoplifting the nail polish, the store security may try to have her sign a document regarding the situation that asks her to take full responsibility for the incident and pay all of the related security costs. She does not have to sign this document but even if she does, she is not required to make the payment claimed.  The security may also keep her at the store until the police arrive but they must call the police within a reasonable time.

In Ontario law, you are responsible to compensate someone if you caused them harm by stealing things that belong to them or by trespassing on their property. However, if Natalie returns the nail polish that she stole, the stole will have lost no money as the shoplifted items have been recovered.

The store may also send a Civil Recovery Demand Letter. Stores often send these demand letters to people who have been caught shoplifting in their stores,or to parents of young people who have also been caught. These letters are often signed by a lawyer and demand payment of amounts in the range of $300.00 to $475.00 to a collection agency, called "Civil Recovery" claiming the security costs of detecting shoplifters in their stores. The letters sometimes suggest that if you don't pay by a certain date the amounts will increase.  If you do not pay, the store might also start a lawsuit.

It is important to know that Natalie and Natalie's parents do not have to pay the amount in the letter. It is simply a threat that cannot be enforced unless it is found to be a valid debt in Small Claims Court. Her family does not need to worry unless they receive a Statement of Claim in the mail. In Justice For Children and Youth's experience - this does not happen.

Natalie's parents can rest assured as well that no harm will come to their credit rating as a result of these letters. 

If the store chooses to call the police, she may be charged under s. 322 of the Criminal Code. This offence is for committing theft:  ...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.

WHAT ABOUT CAMILLA?

Camilla does not have a legal obligation to report Natalie’s theft to employees of the store, to the police or even to her parents. However, If Camilla does not try to stop Natalie or leave the situation, she may be charged as a party to the offence. This is a criminal offence in the Criminal Code of Canada. Under s.21 (1) of the Criminal Code, everyone is a party to an offence who: (a) actually commits it; (b) does or omits to do anything for the purpose of aiding any person to commit it; or (c) abets any person in committing it. Section 21(1) describes three situations where a person is a “party,” i.e., criminally responsible for the conduct of another. In order to be found guilty of the offence or for the charge to be reasonable, there must be some evidence that Camilla intended to assist Natalie  or that she stood somewhere so that the store wouldn't notice Natalie put the item in the bag. 

For more information on what shoplifting and Civil Recovery letters check out some of our past blogs and videos:

Past Blogs on Shoplifting

Part 1 - http://jfcy1.blogspot.ca/2010/10/guest-blogger-tracy-on-shoplifting.html

Part 2 - http://jfcy1.blogspot.ca/2010/10/guest-blogger-tracy-shoplifting-part-ii.html

Video – Civil Recovery Letters

http://jfcy1.blogspot.ca/2011/09/video-civil-recovery-demand-letters.html

Informational Pamphlet: Shop Lifting Demand Letters

http://www.jfcy.org/PDFs/ShopliftingDemandLettersApril%202012.pdf

Informational Pamphlet: Youth Criminal Court Guide

http://www.jfcy.org/PDFs/Charged_March2012.pdf

For further advice or information:

Justice for Children and Youth (if the letter involves a person under 18) GTA: 416-920-1633

Elsewhere in Ontario: 1-866-999-5329

Your local community legal aid clinic: www.legalaid.ca

Lawyer Referral Service 1-900-565-4577 or if under 18 call 1-800-268-8326 (no charge)

This blog scenario was written by Marsha Rampersaud, a volunteer on the JFCY's PLE Team. The legal content was written by Lauren Grossman, a first year law student at the University of Toronto who is volunteering at JFCY as the PLE team leader through her law school's Pro Bono Students Canada program. All legal content was reviewed by a JFCY lawyer.

Theft in a Shopping Mall

  

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Shirley is a 18 year old high school student.  Both her parents work during the day, so they only see her at night. She makes her own breakfast and dinner, and travels to school on her own. She is always studying and receiving good marks for her studies. On her birthday, she wanted her parents to take a day off to spend it with her, but they were too busy and couldn’t go. Shirley was sad but her friends tried to cheer her up and persuaded her to go out to the mall and watch a movie. They arrived at the shopping mall first and they separated ways looking for different clothes. She came across a jewelry store and decided to steal something.  Shirley looked around to see where the cameras were and kept eyeing a necklace in the corner of the store. She slightly opened her bag and slipped the necklace in while nobody was looking. Slowly, she headed towards the exit and had her head down. The alarm went off and the salesperson approached her asking if she could take a look at her bag. The salesperson then found the necklace which she didn’t pay for and called mall security. Her parents arrived at the scene and took her home. Shirley has never committed any type of crime before and she admitted to the security that she had stolen the necklace. The necklace itself was $20 and she handed it to the security.

What will happen to Shirley?

i) Store Security Guard May Try to Have Shirley Sign a Document Requiring Payment Before Allowing Her to Leave the Store.

Shirley does not have to sign this document and even if she does sign the document, she is not required to make the payment claimed. It is not legal for someone to threaten to have you charged by the police if you do not sign a document or do not agree to pay them money. It is not legal for someone, other than a police officer, to refuse to let you leave if you do not sign a document. It is legal for the security guard to keep you at the store until the police arrive. If they do call the police, they must do so within a reasonable time.

ii) Store Security May Call the Police

When the police arrive, they may decide to charge Shirley with theft. They might ask her to appear at the police station for photograph and fingerprints and to appear in court. The police may give Shirley an Appearance Notice that sets out the date, time, and location of her required appearances for the identification process and for court. It is a criminal offence to not attend for either of these purposes. If she fails to go, she will likely be arrested and charged with further criminal offences. If Shirley does not receive notice of a court date, she was not charged with an offence.

iii) Shirley May be Charged with an Offence

The police may charge Shirley under the Criminal Code of Canada section 322. This offence is for committing theft: "...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."

Section 322 (2) of the Criminal Code of Canada outlines when the time of the theft occurs. As Shirley concealed the jeweler item on her person (in her bag) it is possible that a court may view this as “moving” the property such that the theft occured upon her putting the jewelry in her bag: “A person commits theft 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.”  

However, it is important to be established whether Shirley intended to pass the cashier or exit or did in fact pass the cashier and exited the jewelry store with the necklace in her bag. 

Furthermore, because she is over 17 she will be charged as an adult and not under the Youth Criminal Justice Act

iv) The Store May Send Shirley a Civil Recovery Demand Letter

Some retail stores send demand letters to people who have been caught shoplifting or to parents of young people who have been caught. In this case, the store has recovered the item Shirley had stolen as she admitted the theft and rightfully handed it back to the security. Therefore, the store will not be claiming the value of the jewelry item that was stolen but will be claiming security costs; the costs associated with detecting shoplifters in their stores. The letters are often signed by a lawyer and demand payment of amounts in the range of $300.00 to $475.00 to a collection agency. The letters themselves are not the same as a court order and she can choose to pay the amount or not. If she does not pay, the store can start a lawsuit. However, it is rare for the lawyer or company to follow up with a court action if someone refuses to pay. So, she can choose to ignore the letter. Because the item has been returned, it really is Shirley’s decision whether she feels morally obligated to pay any money to the store without a court order.

v) Shirley May Not be Allowed to Enter the Store or the Mall for A Period of Time

The security may issue a notice under the Trespass to Property Act banning Shirley from their stores. Shirley should take this very seriously and not return to the store or the mall until the requisite time period has elapsed. If she does return before this time, she will be trespassing as she is on the property without permission and could be charged.


This scenario was written by Ying Yi, a volunteer on JFCY's PLE team. The legal content of this blog post was written by Lauren Grossman, a first year law student at the University of Toronto who is volunteering at JFCY through her law schools Pro Bono Students Canada program. All legal content was reviewed by a JFCY lawyer. JFCY's legal content is based on the laws in Ontario relevant to youth under the age of 18.

Break and Enter

During a cold winter night closer to Christmas, a group of 18 year olds—Alan, Chris, Kyle and Jason—were hanging around the park where they noticed a van pull out of the driveway across the street filled with luggage sets. In curiosity, the group approached a dark non-lit house and rang the doorbell. No answer. They tried to peek into the window and noticed a large Christmas tree surrounded by large presents. “Maybe this family left for a vacation…no one’s around…” the boys assumed.

The next day, the boys came back to the same house in the afternoon and watched as the neighbours pass by the house. “Let’s come back tonight and see if the van is parked in the driveway,” Kyle commanded. Later that night, approximately 11pm, the boys approached the house and still noticed that the driveway was empty and the house remained unlit. Filled with excitement, Kyle guaranteed the rest of his friends without a doubt that the family who owns the house is on vacation. Kyle, then, gathered around his friends Alan, Chris and Jason suggesting to break into the house and steal the presents. 

At 3AM, Chris drove his white van and pulled into the driveway along with Jason, Kyle and Alan who wore dark clothing and masks. Kyle rang the doorbell one more time to make sure that no one was home… no answer. All 4 boys, then, went to the backyard and threw a piece of stone to break the glass window. As they broke in, they took all the presents under the Christmas tree and also a laptop that was left in the living room. They ran out through the front door with all the things they found, hopped into the van, and drove away.

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What are the legal ramifications of this scenario? 

In Canada, the crime of burglary is referred to as “breaking and entering" or "B&E”. All four boys can be charged with the offence of break and enter under s.348 of the Criminal Code of Canada. The offence of break and enter encompasses situations where the accused was or attempted to trespass on private property with an intent to commit an offence or actually committed the offence. Break and enter does not require any damage to the property entered. All that is required is any entrance into the property by even a part of one's body (s.350 of the Criminal Code of Canada). The key evidence for a conviction of such an offence is circumstantial. For this reason, the identity of those charged as well as evidence of possession of the stolen items are often important indicators. If there was a neighbor or third party on the street who saw these boys, or if a parent, friend, sibling finds the stolen goods or if one of the boys involved comes forward, it is probable that the boys will be charged based on this evidence.

Importantly, if you are charged with a crime after you turn 18, the YCJA is no longer applicable and you will be charged under the Criminal Code of Canada. These four boys are over 17 years old, and will be charged under the Criminal Code of Canada.

Legislation: Criminal Code of Canada

348. (1) Every one who

(a) breaks and enters a place with intent to commit an indictable offence therein,

(b) breaks and enters a place and commits an indictable offence therein, or

(c) breaks out of a place after

(i) committing an indictable offence therein, or

(ii) entering the place with intent to commit an indictable offence therein, is guilty

(d) if the offence is committed in relation to a dwelling-house, of an indictable offence and liable to imprisonment for life, and

(e) if the offence is committed in relation to a place other than a dwelling-house, of an indictable offence and liable to imprisonment for a term not exceeding ten years or of an offence punishable on summary conviction.

350. For the purposes of sections 348 and 349,

(a) a person enters as soon as any part of his body or any part of an instrument that he uses is within any thing that is being entered; and

(b) a person shall be deemed to have broken and entered if

(i) he obtained entrance by a threat or an artifice or by collusion with a person within, or

(ii) he entered without lawful justification or excuse, the proof of which lies on him, by a permanent or temporary opening.

This blog scenario was written by Karen Jacobe, a volunteer on the JFCY's PLE Team. The legal content was written by Lauren Grossman, a first year law student at the University of Toronto who is volunteering at JFCY as the PLE team leader through her law school's Pro Bono Students Canada program. All legal content was reviewed by a JFCY lawyer.