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Toronto Shoplifting and Theft Under $5000 Charges Lawyer

Additional charges are often included when a shoplifter is uncooperative with security

The negative impact of trying to run away, flee the scene, or being generally uncooperative when caught and confronted by store security for shoplifting in Canada.

Any time a shoplifter is uncooperative with the store security it makes the situation much worse. While the most common charge laid against accused shoplifters is theft and fraud under $5000, sometimes additional charges are laid depending on the circumstances of arrest. Either way, the statements of the store security and police will be reported to and considered by the Crown Attorney and possibly the Judge when the case goes to court.

In some cases, the charge of escape lawful custody under Section 145(1)(a) is included if the individual attempts to run, flee, or otherwise leave the scene when they are confronted by store security (thus preventing their arrest).

The Criminal Code of Canada defines escape lawful custody charges in Section 145(1)(a), which states:

145 (1) Every one who

    (a) escapes from lawful custody, …

is guilty of an indictable offence and liable to imprisonment for a term not exceeding two years or is guilty of an offence punishable on summary conviction.

Similar to Theft Under $5000/Shoplifting, Escape Lawful Custody is also a crown elect Indictable Offence (despite the baffling number of incorrect resources claiming shoplifting is a summary offence).

What does it mean to escape, run away from, or flee the scene?

The most obvious example is literally running away on foot from the security guards, however the charge is also included in circumstances where the person simply continues to walk away, get in their car, and leave. Apart from the obvious reason of not wanting to get in trouble, people will flee the scene also because they are scared. Being confronted by a stranger, who is most likely a young man in plain clothes, is often a jarring experience and for some people, in the heat of the moment with their adrenalin pumping, their first instinct is to get away.

"The store security guards are not police officers so they have no legal right to stop me. Right?"

Wrong. The Criminal Code gives them full power to arrest and detain you under Section 494(2), which reads:

494(2) The owner or a person in lawful possession of property, or a person authorized by the owner or by a person in lawful possession of property, may arrest a person without a warrant if they find them committing a criminal offence on or in relation to that property and

(a) they make the arrest at that time; or

(b) they make the arrest within a reasonable time after the offence is committed and they believe on reasonable grounds that it is not feasible in the circumstances for a peace officer to make the arrest.

This means the security guards, who have been authorized by the store owner, have a lawful right to arrest and hold you until the police arrive. It is a crime to escape the lawful custody of the store security (or any store agent) just as it is to attempt to escape from the police.

The security guard, even if undercover, has a legal right to not only approach but to physically arrest the shoplifter assuming they use reasonable force. While this socially awkward confrontation is a shocking experience for most people, it is legal. They are acting under the power bestowed upon them by the Criminal Code.

Store policy often dictates what actions the security guards/store employees will take against shoplifters

While the store security/private investigators are legally allowed to detain a shoplifter using reasonable force, their response is often dictated by the policies of their employment. In the Toronto area, there is a wide range of instructions given to security guards and other store employees responding to situations involving theft. This can include:
  1. Do nothing other than try to dissuade the shoplifter by approaching them and refusing to take their attention off of them (under the guise of customer service/sales) in hopes they abandon their plans to steal
  2. Not confront but follow the individual to try to get their licence plate in the parking lot or identifying information from a purchase and then report it to the police
  3. Confront the individual and verbally try to convince them to come back into the store (where they will be held until the police arrive), but not physically stop them from leaving if they refuse
  4. Use any reasonable physical force necessary to detain the individual until the police arrive (ie. grab them and drag them back into the store)
Often escape lawful custody charges arise in situations where the store security is following the 3rd listed protocol above. In this circumstance, the suspected shoplifter is normally tracked down by the store and police using their licence plate or current/prior purchase information. When the police take over the investigation, if they are satisfied of the identity of the suspect and wish to charge them their next steps are to:
  1. Call the individual, often from an Unknown phone number, and ask them to attend the police station
  2. Attend at the person’s known place of residence to arrest them
  3. Attend the person’s workplace to make the arrest
While it is up to the police which method they choose, it is advisable not to ignore Unknown calls as the 2nd and 3rd methods are far more intrusive to the accused. If the police feel you are trying to avoid them they are also more likely to take you to the police station and hold you for a bail hearing as opposed to releasing you from arrest using a Form 9 Appearance Notice with a future date for fingerprints/mugshot taking and court.

The negative effects of being uncooperative and/or having the Escape Lawful Custody charge in addition to the originally shoplifting related charges (theft/fraud under $5000).

Anytime someone attempts to escape or is generally uncooperative (has an attitude, lies, is aggressive, threatening, etc.) when confronted it makes the situation worse whether additional charges are included or not.

This being said, in all cases it is an aggravating factor to have the escape lawful custody charge added as an additional offence. Its inclusion will make your case more difficult. The degree to which it aggravates the situation is dependent on the circumstances of the particular crime. The reasons it is seen as worse include:
  1. It is viewed as putting the security guards, who are working a sometimes dangerous job, in some degree of jeopardy/danger
  2. It causes the police to have to dedicate much more time and resources to the case
  3. It violates the clear power bestowed by the criminal code for security to make the arrest
  4. It can sometimes put both the store security and innocent third parties in danger in cases involving a struggle or a motor vehicle in the parking lot
Whenever someone attempts to escape, third parties, and the suspect themselves, are put in danger and for this reason it aggravates the crime in the eyes of the Crown Attorney and Judge. In cases where the situation escalates to a physical altercation, charges of Resist Arrest Assault are often also laid in addition to Escape Lawful Custody.

The relevance of the circumstances of the arrest

While ignorance (not knowing) the law is not considered an excuse, factors such as the time of day, personal backgrounds and characteristics of the accused and security, and generally the totality of the circumstances are still relevant and potentially mitigating factors. For instance, if a 70 year old lady with a cane who steals a loaf of bread on a dark winter night is confronted by a 30 year old 6’6 plain clothes security guard while alone in a parking lot and she refuses to go inside and instead goes on a bus at a nearby bus stop this would likely be seen as less serious than most other situations.

Multiple charges can increase the likelihood of problems travelling to the US

Another less often considered factor is that some countries, including the United States, look at the number of different counts (individual charges) when considering the admissibility of a potential traveller. Having more than one charge showing in CPIC is a potential strike against you in the eyes of US Customs. This also applies to other charges that are often included with shoplifting charges such as possession of property obtained by crime.

I tried to run away, how do I know if I have been charged with Escape Lawful Custody?

If the police are including the escape charge, it will say on your release paper which most likely is a Form 9 “Appearance Notice Issued by a Peace Officer” or a Form 10 “Promise to Appear”. The charge is often included below or beside where it says “theft under $5000”. Even if the police do not include it on your court paperwork, the Crown Attorney (prosecution) can add the charge themselves after reviewing/vetting your file when it is submitted to them by the police officer in charge of the case (OIC). Even if the Police/Crown Attorney are not adding the charge, that alleged facts of what happened will still be considered when assessing the allegations.

In all cases the police will submit a statement from the security guards detailing what allegedly happened. This would be what they would testify to at a trial. The police will also submit a written synopsis (description) of what they believe to have occurred. When the Crown Attorney evaluates the case, being uncooperative and/or trying to escape or run away is always considered an aggravating factor whether it is included as a formal charge by the police or not.

"What if I have a mental health problem that causes me to react poorly in moments of stress, anxiety, fear etc.?"

If the accused suffers from a medical health condition such as depression, anxiety, sleeping disorders, or other illnesses that can affect their judgment, it is important that their lawyer be able to demonstrate this to the Crown Attorney and/or Judge at the appropriate time and in a fashion that helps the defence. It is always advisable to save any documentation demonstrating such conditions (ie. prescription printout for Cipralex, etc.).

While this is by no means something that will totally exonerate criminal behaviour, it is relevant and can be useful to your lawyer if presented correctly. For more information on how mental health conditions can impact the court process (both negatively and positively), see here.

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