Diversion: Shoplifting and Mischief

Avoid conviction without a trial

If you’ve been caught shoplifting, you may be able to avoid a criminal conviction without even going to trial. In many Ontario cities including Toronto, as well as in other provinces, people charged for the first time may be eligible to have the charge “diverted.”

Persons accepted into a diversion program generally must acknowledge responsibility for the actions that led to the charge by signing a form that is filed with the Crown. Diversion participants are not required to formally admit guilt.

To get the charge diverted participants usually must complete requirements such as making a charitable donation or doing volunteer work. Once the requirements are met, the Crown withdraws or stays the charge. In some jurisdictions, the Crown may require that you enter a peace bond to stay away from the store where the incident occurred for a period of time, usually 12 months.

Lawyer may change Crown’s mind

Do not give up if initially the Crown decides not to recommend diversion of your charge. Retain a lawyer. A lawyer may be able to persuade the Crown to change its mind. (A lawyer could also persuade the Crown to waive a peace-bond requirement.)

Once the charge is stayed or withdrawn, you can request the police force that laid the charge to destroy your fingerprints and photographs.

Diversion will save you the expense of a trial. There is no finding of guilt and no criminal conviction. But before agreeing to participate in diversion make sure there are no disadvantages.

If you have a defence or the slightest hint of wrongdoing could hurt your career, it may be wiser to seek full exoneration at trial or try to get the Crown to withdraw the charge by other means.

Keep in mind that diversion will result in the creation of a non-conviction police record. A non-conviction record could surface if you have to undergo a vulnerable sector record search for employment or volunteer work with children or seniors. Ontario passed legislation on December 1, 2015, restricting access to non-conviction records.

Victim store may demand money

People charged with shoplifting may receive a letter from a lawyer for the victim store demanding payment of several hundred dollars to reimburse the cost of surveillance, investigation and arrest. Criminal lawyers often advise clients to ignore these letters. Lawyers’ practice of sending such letters has been criticized as unethical: see “Zealous Advocacy or Exploitative Shakedown?: The Ethics of Shoplifting Civil Recovery Letters.”

Other charges may be diverted

Diversion may be available for other minor offences such as possession of stolen property under $5,000, fraud under $5,000, mischief to property under $5,000 and simple possession of marijuana.