Second Offence Shoplifting Cases

What happens when you get caught shoplifting a second time

We frequently get questions from our clients relating to being caught and charged with theft under $5000 (or other shoplifting related offences) more than once. A lot of these individuals were told the first time that if they were ever caught again the consequences would be far more severe. While the risks are certainly higher, our experiences in the Toronto area have been quite successful for second time offenders.

In the majority of our cases we are able to convince the Crown Attorney to agree to withdraw the shoplifting charges again despite the previous charge. As a result, most of our clients avoid a criminal record. This being said, second offense cases are more difficult and often take more time to resolve. Normally, more than one court appearance is required. In exchange for withdrawing the charges, the Crown Attorney will often want the accused to participate in an education program or obtain psychological help. Sometimes community service or a substantial charitable donation is also part of the deal.

Defence lawyers hoping to get their client's shoplifting charges dropped for the second time must convince the prosecution that it is in the public interest not to prosecute. The main elements a good defence lawyer will attempt to convince the Crown Attorney of in cases of this nature include:

1. That the accused is generally a person of good moral character and that the incident was “out of character” or stemmed from a temporary psychological or personal life problem that merits leniency (and is correctable)


2. Demonstrating that the accused has undertaken or is willing to undertake some form of documented educational or psychological help and that they will not reoffend a third time;


3. Showing the accused’s circumstances (family, employment, background, etc.) are of merit and that having them obtain a criminal record and conviction is not in the public interest. If the accused will lose their job and be unable to support their family as a result of a criminal record, it is in the public interest to seek an alternative form of punishment that allows them to continue to be a productive member of society.

Overall, the Crown needs to be satisfied that the outcome of the case will deter, condone, and prevent future crimes. In many second offense shoplifting cases this is possible without a finding of guilt in court and criminal record.

The relevance of the disclosure, facts, and evidence in second offense shoplifting cases

As with any criminal case, the specific circumstances and evidence provided in the disclosure is important. For a second time shoplifting case, the Crown will also take the background and facts of the first offence into consideration.

Factors that are important in negotiating a favourable outcome include:

1. The amount of time between getting caught the first and second time;
2. The disposition of the first case;
3. The total value of the items taken in both the first and second case;
4. The apparent intention of the accused of taking the items (personal use versus for sale);
5. The location the shoplifting occurred both times;
6. The personal circumstances and life situation of the accused.

Generally speaking, having a longer period of time between the first and second offence benefits the accused more than a shorter one. Cases where multiple charges arise within the same year can be difficult, however we have had success even in these circumstances by providing the Crown with evidence that the accused acted out of character and has taken steps to address the problem.

The nature of the accused’s personal circumstances is also highly relevant. Sometimes a traumatic life experience, such as the death of a loved one, can be the catalyst for a second shoplifting incident. Other times, the accused is experiencing problems with their personal relationships or health. As a defence team, we use this information to craft a plan with the Crown Attorney that leads to rehabilitating the accused without prosecuting them. It is always in our clients’ best interest to have the charges dropped or withdrawn and avoid a criminal record.

At some GTA locations, the Crown Attorneys are more reluctant to drop shoplifting charges for the second time if the accused stole from the same store twice. Their reasoning is that the individual is “targeting” that particular store and that this is an aggravating circumstance. In our experience each Crown Attorneys' office views this differently so whether this is an issue depends on which police force arrested you (where you were caught).

Personal use versus for sale

Depending on the description and amount of items that are taken, there may be an allegation that the accused was taking the items to pawn or sell. These cases are viewed less sympathetically because stealing items for sale is seen as an aggravating factor.

When the intent of the accused is financial gain, there is often an underlying cause or explanation to mitigate the perceived malice. A good lawyer will demonstrate to the Crown Attorney that your motivation to steal was relatively understandable given the circumstances (and not for personal enrichment). For example, perhaps the shoplifter needed money to pay for medication for himself or his children.

The Crown must use their discretion to proceed with a charge or not. Showing them that the motive for shoplifting a second time was not simply for personal enrichment (but for a “good cause”) is crucial. If the Crown Attorney believes the accused was shoplifting out of necessity and not greed they are more likely to believe that rehabilitation is possible without a formal prosecution.

Multiple shoplifting charges on the same day

Being issued more than one “Appearance Notice” Form 9 on the same date for the same set of facts.

It is important to distinguish the above noted second offence scenarios from cases of multiple charges arising out of the same set of facts on the same day. It is common to see more than one charge result from a single shoplifting incident. Often, the police will include a possession of stolen property charge in addition to the theft under $5000 or fraud under $5000 charge.

In some cases, more than one act of taking is alleged to have occurred on the same day. This can happen when the individual re-enters the store and shoplifts twice or is caught with unpaid merchandise from another store at the time of their arrest. The police officer may issue separate Appearance Notices or include multiple counts on the same form in these types of cases.

In our experience, most Crown Attorneys in Toronto are relatively reasonable to deal with in these circumstances. These types of cases are viewed as less serious than ones where the individual was caught and charged before on a prior date.


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