A Loss Prevention Guide: The Six Key Elements Of A Lawful Arrest

Retail businesses in Canada depend on Loss Prevention Professionals (LPPs) to safeguard their property and inventory from theft. This responsibility involves a combination of observation, deterrence, and, when necessary, the apprehension of offenders. However, before making an arrest for theft, LPPs must ensure their actions align with the Criminal Code of Canada. Failure to meet legal requirements can expose both the LPP and their employer to criminal charges and civil liability.

To ensure compliance, LPPs must follow best practices when making arrests. Proper training in loss prevention is highly recommended. This guide explores the six critical elements that must be satisfied before an arrest for theft can be lawfully conducted in a retail setting. Adhering to these principles ensures that a suspect’s rights are protected while LPPs operate within the boundaries of the law.

1. The Suspect Approaches the Area Where Merchandise is Displayed

What It Means: Observing the suspect as they enter the store or approach a specific department ensures they did not already possess the item in question. This helps eliminate the possibility that they brought a similar item, such as a smartphone, with them.

Why It Matters: Confirming that the suspect did not have the item beforehand strengthens the case that the merchandise belongs to the store. Without this observation, it may be difficult to prove theft if the suspect claims ownership.

Example: An LPP sees a customer enter the electronics section without any visible headphones. This establishes a clear starting point for observation.

2. The Suspect Selects the Item from the Display

What It Means: The LPP must witness the suspect physically selecting and removing an item from the store’s display.

Why It Matters: This step is critical in demonstrating that the suspect intentionally interacted with store merchandise. Skipping this observation could lead to disputes about intent.

Example: The suspect picks up a boxed set of headphones from the display, confirming their interaction with store property.

3. The Suspect Conceals or Retains the Item

What It Means: The suspect must either conceal the item (e.g., place it in a bag or clothing) or continue holding it in a way that suggests they intend to retain possession.

Why It Matters: This step indicates intent to remove the item without payment. Simply handling an item without retaining it is not enough to establish intent.

Example: The suspect places the boxed headphones into their backpack, raising suspicion of theft.

4. Continuous Observation of the Suspect

What It Means: The LPP must maintain uninterrupted observation of the suspect from the moment they interact with the merchandise until they leave the store.

Why It Matters: Maintaining visual contact ensures that the suspect has not discarded, returned, or otherwise changed their interaction with the item. Losing sight of them, even briefly, weakens the case.

Example: The LPP follows the suspect discreetly, ensuring they do not return the headphones to the shelf or remove them from their backpack.

5. The Suspect Passes the Point of Sale Without Paying

What It Means: The suspect must bypass all checkout areas without making any attempt to pay for the item.

Why It Matters: Under the Canadian Criminal Code, theft requires intent to fraudulently deprive the store of its property. A suspect must have the opportunity to pay before their intent can be confirmed.

Example: The suspect walks past the checkout counters and heads towards the exit without stopping to pay.

6. The Suspect Exits the Store with the Unpaid Merchandise

What It Means: The suspect must physically leave the store with the unpaid merchandise for a theft to be legally established.

Why It Matters: Until the suspect exits, they still have the opportunity to pay. Making an arrest before they leave could lead to legal challenges.

Example: The suspect exits the store with the boxed headphones still concealed in their backpack. At this point, all six elements have been satisfied, granting the LPP the legal authority to make an arrest.

Legal Context: Theft Under the Canadian Criminal Code

Under Section 322 of the Criminal Code of Canada, theft is defined as taking or converting anything “fraudulently and without color of right” with the intent to deprive the owner of it, either temporarily or permanently.

The six elements outlined above represent best practices for meeting this legal standard. Failure to satisfy these requirements could expose an LPP to charges of wrongful arrest, false imprisonment, or even assault.

Why These Elements Matter: Protection from Liability

Loss Prevention Professionals are held accountable for their actions. Following these six elements helps to:

• Avoid Criminal Charges: Wrongful arrests can result in charges such as assault or forcible confinement. Adhering to legal guidelines minimizes this risk.
• Prevent Civil Liability: Wrongful detainment may result in lawsuits for emotional distress, human rights violations, and defamation. Proper procedure provides a defensible legal position.
• Uphold Professional Integrity: These best practices are industry standards, recognized in legal settings, and demonstrate professionalism and respect for the law.

Tips for Success in Loss Prevention

✔ Document Everything: Maintain detailed notes of observations, including times, locations, and suspect actions.

✔ Remain Calm and Professional: Use de-escalation techniques to manage confrontations.

✔ Know Your Limits: Understand your authority under Section 494 of the Criminal Code of Canada. Avoid excessive force.

✔ Invest in Training: Seek specialized courses in legal authority, use of force, and communication, such as those offered by SecurityGuardCourse.ca.

Conclusion

Following the six elements of a lawful arrest provides Loss Prevention Professionals with a clear framework for ensuring legal compliance, protecting suspect rights, and safeguarding themselves from legal consequences.

Loss prevention is not just about stopping theft—it’s about upholding the law and maintaining the highest standards of professionalism. By mastering these principles, LPPs contribute to a safer, more secure retail environment.