What is diversion for shoplifting?


It’s the bane of a store owner’s existence.

Boosting. Racking. Nicking. The five-finger discount.

Whatever you call it, it’s shoplifting and the crime of theft under $5000 under the Criminal Code of Canada.

BPS lawyers have defended hundreds of people over the years against shoplifting charges. Trials are rare as the costs associated with both prosecuting and defending far exceed the modest loss caused by such small-time thefts but an alternative known as “diversion” is very common for such offences.

What is diversion for shoplifting?

In most cases for first-time shoplifters of goods with relatively low dollar values that are recovered by the store, crown prosecutors will offer a defendant the opportunity to participate in a diversion program.

Diversion refers to an option to move your case outside of the traditional legal system and have the charge either stayed (a sort of permanent freeze) or withdrawn entirely. If you are screened eligible to participate in diversion for a shoplifting offence you will typically be asked to do one or more of the following things to complete the program:

  • Accept responsibility. It is important to understand that, in order to participate in a diversion program, you must admit to a staff person outside of court that you did intentionally try to take the items you were accused of shoplifting. If you genuinely forgot that an item was in your cart, you did not have the necessary intent to be convicted of the crime and would be found not guilty at a trial if a judge accepted your explanation.
  • Make restitution. In most cases, the shoplifted goods are recovered on the spot as soon as a person is stopped for the crime but in some circumstances one or more of the products might not be immediately recovered. If that is the case, you will likely be asked to return the item or pay the retailer back the full value of whatever was taken.
  • Make a charitable donation. The most common demand to have a shoplifting charge withdrawn is to make a charitable donation. The size of the donation is usually a function of the value of the items stolen so the higher the value of the shoplifted goods, the higher the donation you will be asked to make will be. Donations can usually be made to any registered Canadian charity. Many such charities operate offices right inside the courthouse making it easy to make a donation and receive proof on-the-spot for use in court. Online donations will also often produce an immediate email receipt which can help you satisfy this requirement right away when you are first offered diversion, which can avoid the need to come back to court on a different day.
  • Do community service. Some courthouses or crown attorneys are uncomfortable withdrawing shoplifting charges in exchange for charitable donations. This exchange makes it appear that those who are rich enough and willing enough to pay, can buy their way out of justice. As a result, some jurisdictions prefer that an offender complete community service instead of, or in addition to, making a charitable donation. As with donations, the number of hours expected for community service is usually a function of the value of the goods shoplifted. The higher the value of the stolen goods, the more community service hours will be expected before the Crown is sufficiently satisfied to withdraw the charge. Most cases where community service is requested require 25-100 hours. Your court case will be adjourned for several weeks or even months to give you the time to complete the community service hours.
  • Write a letter of apology. This is particularly common in cases where a young person is charged with shoplifting. Regardless of the age of the offender, the expectation is that a letter of apology will be genuine, written by the offender him or herself, and reflect not so much on the consequences to the offender but rather demonstrate insight of the impact of shoplifting on storeowners and consumers. Shoplifting costs retailers millions of dollars each year. For small family-owned business that has a direct impact on the individuals who run those stores but even for large international conglomerates, theft hurts the bottom line contributing to lower wages for employees and higher prices for consumers.
  • Take counselling. Many times, shoplifting is a symptom of a deeper mental health issue often associated with self-esteem. The poor person who steals food from the local grocery store has an obvious reason for shoplifting but our office routinely sees wealthy, well-established professionals who could easily pay for the items in their cart charged with shoplifting. For some it is an attention-seeking thrill. For others it is a cry for help to a family member or loved one. For many, it is simply inexplicable. In these cases, getting professional help from a psychologist is important to tackle the root-cause of the behaviour and be able to assure the court that it will not be repeated.
  • Take an anti-shoplifting course. Some jurisdictions either operate their own stop-shoplifting programs or refer offenders to courses run by local charities such as the Salvation Army or the John Howard society. These courses are usually a single full-day in which speakers address root causes of shoplifting behaviour as well as teaching offenders insight into the consequences their seemingly minor actions have on retailers and consumers.

When WON’T you get diversion?

Although diversion is offered fairly routinely across the board in Ontario for people facing shoplifting charges, any combination of the following factors could make you ineligible for diversion on a shoplifting charge:

  • It’s not your first offence. If you have a prior criminal record, particularly if that record includes previous instances of shoplifting for which you may have already received diversion, you’re much less likely to be offered the program again.
  • High-value shoplifting. Although the section of the Criminal Code under which shoplifting is charged includes anything with a total cumulative value of under $5000, theft of items collectively worth around $1000 or more become increasingly difficult to secure diversion on. The higher the value of the shoplifted goods, the less likely it is that you will be offered diversion on your shoplifting charge.
  • No recovery of stolen items. In most shoplifting cases the perpetrator is stopped by store security (often referred to as a “loss prevention officers”) either in the store or shortly after leaving (in the parking lot or in the public area of a shopping mall). In these cases the shoplifted good are usually still in the hands of the thief and are immediately recovered by the store and restocked to the shelves with no loss. If some or all of the stolen items are not recovered and returned to the store or have been torn out of their original packaging preventing the store from immediately restocking and selling them, you will find it more difficult to secure diversion for this offence.

Civil Recovery and Demand Letters

If you are caught shoplifting, whether or not police become involved and a criminal charge is laid, you are very likely to receive a letter several weeks after the incident. This letter will usually come on the letterhead of a law firm or collection agency and will make a demand of payment (typically in the range of $600). The letter will claim that, even though the shoplifted goods have been recovered with no actual loss to the store, you are liable to pay for ‘security and apprehension’ costs. They will threaten that a failure to make immediate payment could lead to escalating charges in the future and may be followed up by court action. They will cite impressive-sounding court precedents and statutes.

We strongly recommend to clients that they DO NOT PAY these demand letters.

The legal basis for the store to make a claim for ‘security and apprehension’ costs is very dubious. The cost to the store of actually pursuing a small claims court action against shoplifters is prohibitively expensive and they almost never make that investment. In the few rare cases that have been taken to court for this claim, the store has often lost or won on only a very narrow basis that forms no precedent for future cases (despite their claims to contrary).

Although it can be anxiety-inducing to keep receiving letters and calls demanding payment for an old shoplifting case, unless you receive an official statement of claim with the Court seal on it, we recommend you ignore these demands.

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