There is one name that many lawyers who defend shoplifters across Canada know.
Sometimes they say the name reluctantly, because they know a B.C. lawyer was disciplined after calling him out.
Others say the name knowingly. They’ve seen it on hundreds of letters that are routinely sent to accused shoplifters on behalf of major retailers.
These “demand letters” seek hundreds of dollars in punitive damages, regardless of whether the stolen items are recovered or no charges are laid. In cases involving minors, the letters are often sent to a parent.
Paul Genua, a Toronto criminal lawyer, likens the practice to extortion because the demand letters threaten legal action if the recipient doesn’t pay, but he says a retailer would never take the person to court.
“First of all, you didn’t get away with the theft because they’ve caught you. So they’re never going to get any damages (in court),” he says. “The damages aren’t worth what the legal fees will be. It so far outweighs it that it’s not worth it.”
And Mark Zinck, another Toronto-based criminal lawyer, says he has told well over 1,000 people to ignore the letters and not one of his clients has been sued.
Yet the letters persist, some of them citing a 1997 lawsuit brought by Hudson’s Bay against a man who was caught stealing $200 worth of gloves. A judge awarded $100 in damages — not for shoplifting but for trespassing — and the judgment was upheld and increased to $300 on appeal.
Retailers defend the letters as a way to extract speedy retribution and recover some of the $4.67 billion in annual losses.
Although thousands of Canadians are accused of shoplifting every year, it’s hard to know exactly how many letters are sent and how many people pay the fees.
Many of the letters originate from a single sender — Toronto lawyer Patrick K. Martin.
Mary is sitting in the living room of her Toronto home, clutching letters with Martin’s name on the letterhead.
She received the first one demanding $595 in the mail in March, a week after her 14-year-old daughter was caught shoplifting at Hudson’s Bay’s Bloor Street store. The daughter was with a teenage boy she’d met on social media.
In it, Martin writes that the retailer’s “right to civil recovery” is based in part on Mary’s failure to provide adequate supervision and is separate from any criminal proceeding.
“I was like, ‘What the hell?’ ” says Mary, a single mother who typically works two jobs. Her name has been changed to protect her daughter’s identity. “How dare you?”
She remembers getting the call from the Bay about an hour after going home from her job where she has worked for seven years.
Her heart dropping, she got a lift to the Bay with another daughter and wandered through the store asking employees where the teen was being held.
Theft prevention officers explained to her they had watched the pair as they entered the store, suspicious because of their hoodies and backpacks, says Mary, who saw the surveillance tape. They waited hours for police to come, she says, her daughter and the friend handcuffed to a bench.
The pair had stuffed $280 worth of athletic apparel into their bags and were caught as they tried to leave the store.
Police held her daughter overnight for shoplifting because of an outstanding assault charge — she’d fought a girl at school — that has yet to go to court. The teen slept on a concrete bench in a downtown cell and had Pizza Pockets for dinner, which she vows never to eat again.
“It was pretty upsetting. I was emotional in the courtroom,” says Mary, as she waited for her daughter to be released the next day.
The teen girl wasn’t scared, but “felt more stupid because I did it for someone else and not even me. I technically took the blame, too.” She has to complete a stop-shoplifting program and 15 hours of community service before the charges are withdrawn.
“I don’t think it should be handled criminally like that,” says her mother of the shoplifting charge. “I could see if it’s a repetitive thing. Then you have an issue. Maybe you should go for some sort of rehab or whatever to find out what’s going on with you. But this is a youth. They make mistakes.”
When Mary received the letter from Martin, it wasn’t a complete surprise — the Bay’s theft prevention officers told her she would be “fined.” Mary thought at most it would be $50, not the $595 requested in Martin’s letter.
“It’s too harsh to ask the parents for such a large amount when you’re a single mom with kids on one income,” says Mary. “I only have one job.” Until six months ago, she had a second job and worked about 80 hours a week.
She says she called Martin a couple of times but never heard back from him. The Star has tried to reach the lawyer by phone, mail and in person without success.
“Why don’t you go after the father?” she asks. “Why the mom, you know? Because she lives with me? The kids don’t see their dad but still. You know, every mom I talk to, I think they struggle.”
In May, another letter arrived demanding $695. Two mothers she knows have received similar letters.
Martin operates from a spartan office in Don Mills, although it’s impossible to tell how often he is there.
A sign on the office door directs deliveries to a unit on the same floor, operated by another lawyer who has case files on every surface in the room. He says Martin is in the office every day, but he’s not sure when he’ll return.
It’s from this address that Martin has sent demand letters on behalf of major retailers such as Hudson’s Bay, Shoppers Drug Mart, Walmart and Winners. Like the one received by Mary, the letters typically ask for hundreds of dollars to settle a claim for damages after a shoplifting incident and say the retailer may ask Martin to find a law firm to commence legal action if the amount isn’t paid.
It is not clear who gets the money when someone pays.
Half a dozen lawyers say that the claims are invalid or that they haven’t seen a retailer follow through with a lawsuit.
“This is one of the tricks, right?” says Alice Woolley, president of the Canadian Association for Legal Ethics, a not-for-profit agency that encourages debate on legal ethics. “The stores send the letter, and if you don’t pay, nothing happens. They don’t go to court because they know they won’t win. So they just count on a certain percentage of people paying.”
Woolley says the letters “are completely without legal merit. There’s an exploitation of power there.” But she speculates that the government hasn’t stepped in to regulate the issue because “some people think that, morally, the retailers are in the right.”
Walmart says they use the demand letters to offset the costs of shoplifting.
“Theft is a problem for all retailers that costs the overall Canadian economy millions of dollars each year,” Anika Malik, Walmart Canada’s director of corporate affairs, wrote in an email to the Star. “Some retailers, including Walmart, use civil recovery programs to recoup some of the costs associated with thefts in stores. We continually evaluate the impact of our loss-prevention programs.” Other retailers didn’t respond to requests for comment.
Mary feared if she didn’t pay, Martin would turn to a collection agency and that would bring down her credit rating. She called his office and left messages but has had no response. Although the letter lists his office phone number, it says all correspondence is by mail.
Unlike many other lawyers, there is little about Martin online.
One website, a resource to find legal representation, lists a Patrick K. Martin who graduated with a BA from York University in 1991 and from McGill law school four years later.
He began practising civil law in 1997, according to the Law Society of Ontario’s website, and has no history of discipline.
There is also a Patrick K. Martin associated with American Tax Refund Corporation, an online site that lists a different suite number in Martin’s Don Mills’ office building, but the same telephone number. The site says Martin is a former employment lawyer. The tax corporation’s website promises to help Canadians retrieve the 30 per cent of winnings U.S. casinos routinely hold back for taxes in that country.
It’s difficult to pinpoint exactly when Martin began sending civil demand letters, but in 2011 a client of now semi-retired British Columbia lawyer Gerry Laarakker received a letter from him after the client’s daughter attempted to shoplift at a Hudson’s Bay in B.C.
Laarakker sent Martin a fax in response to the demand letter. Two days earlier, he had posted “personal remarks” about Martin on a blog post written by someone who had received a similar letter.
Martin complained to the Law Society of British Columbia, and Laarakker was disciplined for professional misconduct and fined $1,500. Among other things, the B.C. society’s written judgment said “it is not the respondent’s place to pursue some form of vigilante justice against that lawyer by posting intemperate personal remarks or by writing letters that do not promote any possibility of resolution of the client’s legal dispute.”
Seven years later, Laarakker continues to speak out.
“It’s not out of the ordinary for a lawyer to write a collection letter when somebody owes a client money,” says Laarakker. “But in this case, there is no damage. There is no judgment. There is nothing. There is just a letter of intimidation,” he says.
Laarakker says the Ontario law society should prohibit lawyers from sending these letters.
Susan Tonkin, communications adviser for the Law Society of Ontario, said in an email to the Star that lawyers can be disciplined if they break one of the rules related to professional communications, which, among other things, stipulate a lawyer must be courteous, civil and act in good faith, and that he or she shall never knowingly assist in dishonest conduct.
But when asked if regulating the letters was within the scope of the law society, Tonkin wrote that it “is the courts and not the Law Society that determine claims for civil recovery.”
After Laarakker was disciplined, he heard from hundreds of people all over Canada who had received similar letters. He offered to represent each of them for $100.
The cases never went to court.
“I just write to Mr. Martin, and I say that I represent that person. I look forward to seeing you in court,” says Laarakker. “And that’s the last I hear of it.”
Demand letters to accused shoplifters first showed up in Canada in the 1990s, taken from an American practice backed by state legislation.
Those statutes allow retailers to go to civil court to recoup not only the value of the merchandise stolen, but in many states costs for recovery, expenses related to it and even reasonable attorney fees and court costs.
The laws were enacted to reduce thefts and give retailers “an alternative to criminal prosecution as a means to restitution,” writes Ryan P. Sullivan, an assistant professor of law at the University of Nebraska.
In reality, there is little evidence to show a reduction in the crime, he writes in a university publication, and “most large retailers pursue criminal charges and a civil remedy.”
In Canada, there is no such legislative framework to support the practice.
Instead, Martin’s demand letters cite an Ontario court case, Hudson’s Bay Company v. David James White, as the basis for the civil claims.
In the 1997 case, White was caught trying to steal five pairs of gloves worth $200, but was stopped by theft prevention officers, who recovered the items. Hudson’s Bay took him to court, asking for $2,000 for the merchandise as well as damages related to trespassing. The store was awarded $100, which was increased to $300 in punitive damages by an Ontario court in 1998 after the Bay appealed.
Martin’s letters don’t cite an earlier appeal case in 1996, when a Manitoba mother sued Zellers to recoup the $225 she had paid to the retailer after receiving a demand letter on behalf of her 14-year-old son who had been caught shoplifting. The appeal judge ruled that parents aren’t responsible for the wrongdoings of their children unless they are in some way negligent.
“Whatever legal opinion Zellers might have had regarding their claims generally,” wrote the judge in his decision, “I cannot believe they seriously thought this claim would succeed or that they seriously intended to pursue it to court if it was not paid.”
Despite this decision, and despite the Retail Council of Canada saying at the time that Canadian retailers would take a “very close look” into the practice, retailers have persisted in using civil recovery methods to recover losses from accused shoplifters. And in the case of minors, their parents.
Although parents may often feel responsible when their children commit crimes, they are not legally liable, says Mary Birdsell, the executive director of Justice for Children and Youth, a legal-aid clinic in Toronto.
Nevertheless, the shoplifters’ and their parents’ guilt are what make them successful targets for these letters, Woolley suggests.
“If you look to see how successful phone and internet scams are of people who feel shame, who are afraid, who are associated with wrongdoing,” Woolley says, “when people tell them they owe something, and they know they did something wrong, they assume that it’s true.”
Chris Heslinga, a lawyer who works in a non-profit legal clinic in B.C., says some of his clients pay the demand despite his advice, because they are afraid of being sued for a greater amount.
“The problem is these letters are being sent to people who are easily intimidated, who are not used to having anybody in their corner to fight their fight. And they’re written in a very aggressive manner that would scare most people,” he says.
Shoplifting on the rise
Toronto is on pace to have a record number of shoplifting incidents in 2018. Halfway through the year, more than 10,000 cases had been reported to the Toronto Police Service, close to 2014’s total of 11,010.
And the crime is on the rise in other jurisdictions.
In Ontario, Alberta and British Columbia shoplifting rose 30 per cent, 65 per cent and 25 per cent respectively from 2013 to 2017.
It’s so common that in some U.S. cities, police have scaled back their response to the crime.
In Dallas, officers won’t attend a call unless the merchandise stolen is $100 or more. And in Arlington, Va., Walmart created a program so that accused shoplifters could avoid arrest and charges by completing an educational program.
It’s difficult to determine if the numbers are on the rise because more people are shoplifting, or because of an increase in the number of theft prevention officers retailers are employing.
Several defence lawyers say theft prevention officers exercise considerable discretion, arresting people who may have simply forgotten something at the bottom of their shopping carts or stepped outside the store to take a call and get better reception.
One lawyer tells of a client who says he borrowed a tape measure from a store where he had bought hundreds of dollars worth of lumber, forgot it in his pocket and was detained as he left.
Another lawyer has had clients accused of shoplifting who went out with full carts to add merchandise displayed at the entrance or in the garden centre.
What is clear from the numbers is that civil demand letters seeking hundreds of dollars have not had an impact. That is contrary to what a lawyer for many retailers claims.
“Experience indicates that pursuing shoplifters for such losses reduces the number of shoplifting incidents, resulting in savings which can then be passed on to consumers,” writes Toronto lawyer Patrick K. Martin in a letter to a parent of a 14-year-old accused of shoplifting.
Yet shoplifting is still one of the most common crimes with calls to police hovering around 100,000 a year, although only about one-third of people are charged, according to Statistics Canada.
Experts — and defence lawyers — say there isn’t a typical shoplifter.
Younger people may shoplift for the thrill or because of peer pressure, while adult shoplifters may steal items they can’t afford, says Dean Dabney, a criminology professor at University of Georgia.
“With adults I think you see a lot of entitlement, with the sense that, it’s not that big a deal. Walmart isn’t going to miss it, kind of a Robin Hood mentality,” says Dabney. “But also again, the issue comes into play whether the individual thinks they need it, or it’s overpriced, or outside their comfort in terms of spending money. It’s a need versus want disconnect.”
Still others have mental health or addiction issues.
Luisa Leite-Moniz, who runs the Salvation Army’s theft intervention program, says offenders often have underlying problems, mainly mental health and substance abuse issues. “We look at why they are shoplifting because it’s not actually helping the other problems they think they have. It’s creating new ones,” she says.
She says the criminal justice system is limited in what it can do, and the solution lies with a social justice response.
Stephen O’Keefe, from the Retail Council of Canada, thinks part of the problem is that offenders don’t view it as theft.
“It’s watered down and whitewashed to a certain effect that people don’t see it as problematic, as dishonest,” he says. “With shoplifting, what happens is that people find an opportunity, and they don’t put a face to the organization. So they don’t feel like they’re stealing necessarily from the pockets of the employees or from the pockets of the business-owners. They think it’s a big corporation that can afford it.”
In busy courthouses in the GTA, first-time offenders — and one lawyer says even some fifth-time offenders — rarely see court.
Crowns who review cases more often send accused shoplifters to the courthouse’s Direct Accountability Office. There, the accused has to accept responsibility for the act they are alleged to have committed, even if they believe they are innocent. Workers then deliver sanctions such as community service, a stop-shoplifting program or a donation to a charity — or perhaps all three.
Charges are typically withdrawn once the sanctions are fulfilled.
Although some lawyers say clients balk at what they see as an admission of guilt, they don’t advise them to go to court.
“I say to (clients) you only have two options,” says defence lawyer Paul Genua. “You either go through this thing, acknowledge that you took it and you’re sorry or whatever,” he says, or spend more than a couple thousand defending the charge in court.
“Most people just go through the process.”
Patty Winsa is a Toronto-based data enterprise reporter. Follow her on Twitter: @PattyWinsa