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.