Retail businesses in Canada rely on their Loss Prevention Professionals (LPP’s) to protect their property and inventory from theft. This is done through a combination of observation, deterrence, and the apprehension of offenders. Before an LPP makes an arrest for theft, they must ensure they are in compliance with the Criminal Code of Canada. Failure to meet these standards can expose both the LPP, and their employer, to criminal charges and civil liability.
To ensure compliance, it is critical that LPP’s follow established best practices when making arrests. Proper training in Loss Prevention is highly recommended. This post will explore the six critical elements that must be satisfied before an arrest can be made for theft in a retail setting. Each element ensures that the suspect’s rights are protected, and that the LPP is operating within the bounds of the law.
1.)The Suspect Approaches the Area Where Merchandise is Displayed
What it Means:
The first element involves observing the suspect entering or approaching the area where merchandise is displayed. This may mean entering the store, or for larger retail spaces, entering a department such as electronics. The purpose of this initial element is to ensure that the suspect did not already possess the item in question when they entered. It is always possible that they brought something similar, such as a smartphone, with them.
Why it Matters:
Observing the suspect entering the area without the item in question ensures that the item belongs to the store. Without this important first step, it may be difficult to prove that the item was stolen if the suspect claims that they brought the item into the store with them.
Example:
You observe a customer walk into the electronics department and approach the display of headphones. You notice that they are not wearing any headphones, and none are visible in their person. This establishes the starting point of your observation.
2.)The Suspect Selects the Item From the Display
What it Means:
The second element requires observing the suspect physically select an item and remove it from the store’s display.
Why it Matters:
This element is crucial for proving that the suspect intentionally interacted with the merchandise. Skipping this step could lead to disputes about whether the suspect had any intent to interact with or take the item.
Example:
You observe the same customer remove a boxed set of headphones from the display. At this point you have established that the suspect has interacted with the merchandise, which is still the property of the store.
3.)The Suspect Conceals the Item or Continues to Hold it
What it Means:
The suspect must either conceal the item (i.e. hide it in their clothing or bag), or continue to hold onto it in a manner that suggests that they intend to retain possession.
Why it Matters:
This element is essential to show the suspect’s intent to deprive the store of the item without paying. Merely handling an item without concealing or holding onto it is not enough to establish intent.
Example:
The suspect places the boxed headphones into their backpack. This action shows the intent to retain possession of the item, and raises suspicion of theft.
4.)Continuous Observation of the Suspect
What it Means:
From the moment the suspect interacts with the merchandise until they leave the store, you must maintain uninterrupted observation. This is sometimes referred to as constant surveillance.
Why it Matters:
Continuous observation ensures that the suspect has not discarded the item, returned it to its place on the display, or otherwise changed their behaviour. If you lose sight of the suspect, even for a few seconds, you can’t conclusively prove that they are still in possession of the item.
Example:
You follow the customer discreetly through the store. At no point do they remove the headphones from their backpack, or return it to the electronics department.
5.)The Suspect Passes the Point of Sale Without Paying
What it Means:
The suspect must move through, or past, the store’s checkout area without attempting to pay for the item. This is a critical element for establishing theft.
Why it Matters:
The Canadian Criminal Code defines theft as taking property “fraudulently and without color of right.” Until the suspect bypasses the opportunity to pay, their intent to steal cannot be confirmed. Accusing a customer of theft before they have had a reasonable chance to pay could result in wrongful accusations, which could lead to criminal and civil repercussions for the LPP.
Example:
The suspect walks past all of the checkout counters and heads towards the store’s exit, without stopping to pay for the headphones. This action confirms their intention to not pay for the item.
6.)The Suspect Exits the Store With the Unpaid Merchandise
What it Means:
The final element is met when the suspect leaves the store with the unpaid merchandise. It is only then that a theft has occurred.
Why it Matters:
Under Canadian law, a theft has only occurred once the suspect leaves the store with the unpaid merchandise. Until this time, there is still the opportunity for them to choose to pay for the item. Placing someone under arrest before they have left the store could lead to legal issues for both the LPP and their employer.
Example:
The suspect exits the store with the boxed headphones still concealed in their backpack. At this point all six elements have been met, and the LLP has the lawful authority to proceed with an arrest.
Legal Context: Theft Under the Canadian Criminal Code
Under Section 322 of the Criminal Code of Canada, theft occurs when somebody “fraudulently and without color of right takes, or converts to his use, anything with the intent to deprive, temporarily or absolutely, the owner of it.”
The six elements described in this post are well-established best practices for meeting the legal standard for theft under Canadian law. Failure to meet all of these requirements could result in charges of wrongful arrest, false imprisonment, or even assault against the LLP.
Why These Elements Matter: Protection from Liability
When making an arrest for theft, it is not just the suspect’s actions that are under scrutiny. The actions of the LLP are as well. Adhering to the six elements is essential for:
- Avoiding Criminal Charges: Arresting someone without lawful authority can lead to criminal charges of assault or forcible confinement. Following all six elements minimizes the risk of acting outside of your lawful authority.
- Preventing Civil Liability: If a suspect is wrongfully detained, they could sue the LPP and the organization for monetary damages. These may include emotional distress, human rights violations, and defamation. By following all six elements, the LLP has established a clear, defensible process to justify their actions.
- Upholding Professional Integrity: The six elements are well established, industry best practices. They have been tested in court, and demonstrate professionalism and respect for the law.
Tips for Success in Loss Prevention
Document Everything:
Keep detailed notes of your observations, including times, locations and specific actions taken by the suspect.
Be Calm and Professional:
Always remain calm, even if the suspect becomes agitated. Use your communication and de-escalation skills to manage the suspect’s behaviour.
Know Your Limits:
Understand your arrest authorities under Section 494 of the Canadian Criminal Code. Understand also that overstepping this authority, or using excessive force can lead to serious legal consequences.
Obtain Training in Legal Authority, Use of Force, and Communication:
Seek out and take advantage of high quality training course providers, such as SecurityGuardCourse.ca to develop your knowledge and skills in loss prevention processes and techniques.
Conclusion
The six elements of a lawful arrest provide a clear framework for Loss Prevention Professionals to follow. By adhering to these steps, LPPs ensure that their actions comply with the law, protect the rights of the suspects, and protect themselves from legal repercussions.
Remember, there is more to the role than preventing theft. It is also imperative to uphold the law, and maintain the highest standards of professionalism. By mastering these six elements, you will be contributing to a safer, more secure retail environment.
References
Criminal Code Help (n.d.). Theft Laws in Canada. Retrieved January 25, 2025, from https://www.criminalcodehelp.ca/offences/against-property/theft/#:~:text=for%20Theft%20Glossary-,What%20is%20Theft%20in%20Canada?,temporarily%20from%20its%20rightful%20owner.
Government of Canada (2024, September 18). Criminal Code (R.S.C., 1985, c. C-46). Justice Laws Website. Retrieved January 25, 2025, from https://laws-lois.justice.gc.ca/eng/acts/c-46/
Government of Canada (2024, September 18). Criminal Code (R.S.C., 1985, c. C-46). Justice Laws Website. Retrieved January 25, 2025, from https://laws-lois.justice.gc.ca/eng/acts/c-46/section-322.html
Government of Canada (2024, September 18). Criminal Code (R.S.C., 1985, c. C-46). Justice Laws Website. Retrieved January 25, 2025, from https://laws-lois.justice.gc.ca/eng/acts/C-46/section-494.html